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at. 


BY 


DAVID  PAUL  BROWN. 


UAOKCT9   DICENDI   LABOR— MAONA   RES,   MAONA   DIONITAS,  SUMilA  AtJTEM  ORATI A."— CICIKO. 


VOL.  I. 


PHILADELPHIA: 

ROBERT  H.  SMALL,  LAW  BOOKSELLER, 

NO.  21   SOUTH  SIXTH  STREET. 

1856. 


rrt 


PROEM, .'....-.    xxv 

Objections  to  Auto-Biography — Substitution  of  Extracts  from  Living- 
ston's Memoirs — Reasons  for  not  omitting  it  altogether — The  motive 
offered  as  an  apology. 

BIOGRAPHICAL  MEMOIR, xxvii 

Parentage — Birth — Training  by  mother — Teachers — Temperament — Me- 
mory— Indulgence — Anecdote — Letter  from  Mr.Rawle — Mother's  death 
and  its  effects — Sent  to  Massachusetts — Extract  from  Sandemanians — 
Return  home — Commences  study  of  medicine  with  Dr.  Rush — Death  of 
Dr.  Rush — Studies  law  with  Mr.  Rawle — Course  of  reading — Death  of 
father — Admitted  to  practice — First  cause — Orations — Catholic  dis- 
putes— Case  of  conspiracy — Impeachment  of  Judge  Porter — Marriage 
— Extent  of  professional  business — Case  of  Zelin  v.  Snyder,  Circuit 
Court — Promptitude  in  emergency — Perils  of  printing — Review  of 
Brougham,  Baillie,  and  Hamilton — Sertorius,  Prophet  of  St.  Paul's 
and  other  dramas — Notices  of  them — Bar  anecdote — Extract  from  pri- 
vate journal  of  a  member  of  the  bar — Habits  of  life  and  manner  of 
speech — Mode  of  composition — J.  R.  Ingersoll — Eulogy  upon  Mr. 
Rawle — Mr.  B.'s  regard  towards  younger  members  of  the  bar — Golden 
rules  for  examining  witnesses — Capital  hints  for  capital  cases — Trial 


CONTENTS. 


York  in  defence  of  Zenger — Account  of  the  proceedings  prior  to  his' 
arrival — His  speech,  and  success — Obituary  notice  of  him — List  of 
provincial  judges  and  attorneys-general. 


CHAPTER  III., 297 

THE  JUDICIARY — THEIR  APPOINTMENTS TENURES SALARIES Chief  JuS- 

tices  before  Mansfield's  time — With  few  exceptions,  unworthy  of  remem- 
brance— Lord  Coke's  selfishness  and  cruelty — Entitled  to  rank  with  the 
"Bloody  Judges" — Conduct  towards  Bacon  and  Ealeigh — Lord  Mans- 
'  field's  opinion  of  it — Coke  a  great  lawyer,  but  a  bad  man — His  connec- 
tion with  the  common  law — Horror  of  the  bar  at  an  attack  upon  him — 
General  character  of  the  judges  before  the  time  of  Mansfield — Rivalling 
Jeffries  in  infamy — Improvement  within  last  century,  in  manners, 
morals,  and  talents — Terms  by  which  judges  had  appointments,  and 
their  changes — Effect  upon  the  judiciary — American  Courts — Honest 
and  competent — Their  tenure  of  office — Difference  between  English  and 
American  judges,  and  its  causes — Constitution  of  Pennsylvania  of  22nd 
of  February,  1838 — Of  the  judiciary — Amendments,  power  of— Amend- 
ments— Life  appointments  changed  to  terms  for  years — Appointments 
became  elective  in  1850 — Clause  of  good  behavior  and  oath  stiU  re- 
tained— Objections  in  convention  to  tenure  for  years — Unavailing — 
Hope  triumphs  over  experience — No  complaints  of  result  at  present — 
Best  advocates  do  not  make  best  judges,  (Erskine,  Brougham,  Camp- 
bell, Wilson,  Ingersoll,  Huston,)  either  in  England  or  in  this  country — 
Reason  thereof  assigned — Lord  Campbell's  doctrine  on  the  subject — 
Are  terms  for  years  to  be  preferred  to  life  appointments  ? — Are  elective 
judges  preferable  to  those  by  appointment  ? — Brief  discussion  of  this 
matter — Salaries  of  judges  too  low — Impropriety  of  annual  appeals  to 
increase  them,  made  by  the  bar — Indelicacy  of  the  movement — Meet- 
ings, committees,  &c. — Objects — Toadies  and  supernumeraries — Sign- 
ing petitions — All  unfavorable  to  a  dignified  and  impartial  administra- 
tion of  justice — Judges  should  ask  no  favors  and  fear  no  frowns — 
Apparent  influence  leads  to  suspicions  and  unjust  slanders,  by  which 
justice  is  sullied — Integrity  and  purity  of  our  present  judiciary — How 
long  are  they  to  last  ? — The  polls,  how  made  up — The  crisis  that  must 
arrive — Poverty  of  judges — Meagre  salaries — The  cure  of  the  evils — 
Continuance  of  present  judges  in  office  for  life — Old  judges  and  settled 
laws — New  judges  and  reform — Limitation  of  age — Its  absurdity — 
Marshall  Kent — English  judges — Retiring  pensions — Enlargement  of 
salaries — Judges  must  live — Must  be  paid — Not  paid  with  a  maxim  or 
a  proverb. 


CONTENTS.  xv 


CHAPTER  iv.,     .  "~\  t :'T  J .;';_  V  : "";'';  ".  Jjjt  '  '.;   320 

THOMAS  M'KEAN,  L.L.D. — Preliminary  remarks — M'Kean  one  of  the  signers 
of  the  Declaration  of  Independence — First  Chief  Justice  of  the  Supreme 
Court  of  Pennsylvania — Appointed  on  the  28th  of  July,  1777 — Continued 
until  1779 — Elected  governor — Succeeded  as  Chief  Justice  by  Edward 
Shippen  a  prior  associate — Incidental  notice  of  JUDGE  SHIPPEN — Birth 
— His  parents — Sent  to  Middle  Temple — Returns  to  Philadelphia — Ad- 
mitted upon  his  certificate  of  "utter  barrister"  to  practice  in  Supreme 
Court  of  Pennsylvania — A  man  of  learning  and  a  safe  judge — Upon  the 
bench,  from  1791, until  1799,  as  an  associate — Importance  oflegal  educa- 
tion at  the  Temple  overrated,  (note) — The  judges  of  the  time  well 
founded  in  legal  principles  and  practice — Been  clerks  and  protho- 
notaries — Effect  of  general  knowledge  upon  judicial  character — A  judge 
expected  to  know  everything — Chief  Justice  of  King's  Bench  and  Jack 
Tar — Personal  appearance  of  Judge  Shippen — Resigns  in  1805 — Died 
on  16th  April,  1806 — Portrait  in  Law  Library — M'Kean — Birth — Of 
Irish  extraction — Parentage — Studies  law  with  a  maternal  relative — 
Admitted  to  practice  in  Supreme  Court  in  1757 — formerly  prothonotary, 
&c. — Selected  to  revise  the  laws  in  1762 — Becomes  Governor  of  Penn- 
sylvania in  1789 — Continues  three  terms — Always  considered  a  sound 
lawyer — A  theoretic  democrat,  though  somewhat  aristocratic  in  prac- 
tice—Fondness for  titles — An  instance  thereof — Ceremony  in  opening 
his  court — A  man  of  inflexible  honesty  and  undoubted  ability — Strong 
prejudices — Jealous  of  authority — Sternness  on  the  bench — Indepen- 
dence of  the  bar  in  his  time — Governeur  Morris — William  Lewis — 
Never  wavered  in  his  duty — Warrant  for  the  arrest  of  Colonel  Hooper 
(for  libel) — General  Green  writes  to  Chief  Justice  on  the  subject — Reply 
and  rebuke  from  M'Kean — Case  of  the  Chevalier  de  Longchamps  for 
assault  upon  Marbois — Sentenced  by  M'Kean — Respublica  v.  Oswald, 
(libel  and  attachment) — Statement  of  the  origin  and  course  of  the 
case — Lewis  for  the  prosecution,  Jonathan  Dickenson  Sergeant  for  de- 
fendant— Decision  and  sentence  by  chief  justice — Attempt  to  impeach 
chief  justice  (note) — Style  imitates  Mansfield — Resembled  Holt  more — 
Notice  of  Lord  Mansfield's  course  after  destruction  of  his  library — Stan- 
zas by  Cowper — M'Kean  summoned  by  sheriff  as  one  of  his  posse — 
Riot  suppressed  by  him — Account  doubtful  from  its  resemblance  to  a 
similar  anecdote  of  Holt — Governor  M'Kean  applied  to  by  a  committee 
opposed  to  Tilghman's  appointment  as  chief  justice — His  deportment, 
and  refusal  to  comply  with  their  demands — Conduct  towards  a  com- 
mittee requiring  him  to  withdraw  a  veto — Deserved  rebuke — Refuses 
the  address  to  remove  Breckenridge — "  May"  sometimes  means  "  wont" — 


CONTENTS. 


Cordiality  at  times — Appointment  of  Alderman  Goodman — Created 
Doctor  of  Laws  by  Nassau  Hall  (Princeton)— Member  of  Cincinnati- 
Trustee  of  Pennsylvania  University — Patron  of  other  societies — First 
marriage — Second  marriage — Survives  most  of  his  children — Descrip- 
tion of  his  person,  dress,  manners,  &c. — Independence — Pride — "Walking 
emblem  of  Declaration  of  Independence — Marquis  de  CasaYrujo — 
Duke  of  Soto  Major  (note) — Genius — Education,  Ac. 


CHAPTER  V., 350 

BUSHROD  WASHINGTON,  L.L.D. — Notice  of  Justices  Wilson,  Iredell,  Patter- 
son, and  Chase — Disposition  of  Chase — Trait  of  Leake— Case  of  Fries — 
Gratitude  to  Luther  Martin — Conduct  towards  Moses  Levy — Death  of 
Judge  Chase — Washington,  THE  JUDGE — His  great  qualities — His  literary 
attainments — His  appointment  at  the  age  of  thirty-seven — Appointment 
of  Chief  Justice  Marshall — Death  of  Washington — Tablet  to  his  me- 
mory— Person  and  judicial  deportment — Rebuke  of  the  crier — His  in- 
dependence and  impartiality — Zelin  v.  Snyder — Mr.  Bellas  examined 
as  a  witness,  the  other  witnesses  having  gone  off — Difference  between 
Washington  and  Peters  on  subject  of  equity — Sinnickson's  will,  Tren- 
ton— Conversation  between  Stockton  and  Washington — Don  Vives — 
Mr.  Adams — Supreme  Court,  U.  S. — Chancellor  Kent — Chief  Justice 
Marshall — Governor  Desha  and  his  son — Death-warrant  or  pardon — 
Judge  Washington's  views  on  the  subject — Tenderness  towards  his 
wife — Her  accompanying  upon  his  circuit  in  his  own  carriage — She 
survived  him  but  twenty-four  hours — Resemblance  to  Mrs.  Marshall, 
wife  of  Chief  Justice — Judge  Marshall  sacrifices  to  his  wife's  humor — 
Bravery  of  Judge  Washington — Equal  to  his  uncle — Judge  Hopkin- 
son's  eulogy — Case  of  the  Atlantic — Dispute  of  the  counsel — Rebuke  of 
the  judge — Strange  occurrence  in  court — Alienation  of  mind — Judge 
Washington's  deportment — Trial  of  Lieutenant  Hand,  for  assault  upon 
Russian  minister — Don  Onis  subpoened — Jury  find  against  judge's 
charge  in  a  civil  case — Motion  for  a  new  trial — Granted  at  once — 
Washington's  manner  of  charging  a  jury — Never  suspected  of  unfair- 
ness— Indifference  to  the  opinions  of  others  when  conscious  of  doing 
right — Murray  v.  Dupont — Excellent  definition  of  probable  cause — 
Case  of  United  States  v.  General  Bright  and  others — Statement  of  the 
facts — Judge  Washington's  firmness  and  independence — The  convic- 
tion— Sentence. 


CONTENTS.  xvjj 


CHAPTER  VL,      .  ;  V  --•••.••"-*'%•  's'lvr  •'  ;  i-1* •;."';  -'i-  •"  '."    379 

WILLIAM  TILGHMAN,L.L.D. — Drawn  chiefly  from  Mr.Binney's  eulogy — Rea- 
sons assigned — Difficulty  of  making  extracts  without  impairing  the  work 
— Like  severing  the  Graces — Dr.  Johnson's  excuse  for  borrowing  from 
Goldsmith — Mr.  Binney's  eulogy  nearly  out  of  print — Nature  of  law — 
How  judges  should  be  selected,  and  who  should  be  avoided — Tilghman's 
fitness — Recommended  for  imitation — Birth — Ancestors — Enters  col- 
lege— His  instructors — Takes  his  degree — Studies  law  with  Mr.  Chew — 
Removes  to  Chestertown,  where  he  pursues  his  legal  studies — Becomes 
a  representative  to  the  legislature  of  Maryland — Appointed  Chief  Judge 
of  Circuit  Court — Short  existence  of  the  court — Appointed  Presi- 
dent of  the  Court  of  Common  Pleas — Commission  as  Chief  Justice  of 
Supreme  Court — His  industry  and  talents — Reports  English  statutes  in 
force  with  us — His  influence  with  the  bar — His  moderation  and  mo- 
desty— His  opinions — Incorporation  of  equity  with  law — Their  distinc- 
tions— Penal  law — Oyer  and  Terminer — His  deportment  and  know- 
ledge— Finished  capital  cases  in  one  session — Pronounced  sentence 
with  great  pain — Resemblance  to  Sir  Matthew  Hale — His  reverence  for 
Deity — Excellent  temper — His  character  as  a  judge — Comparison  with 
other  judges — Clearness  of  mind — His  moral  qualities — His  early  life — 
In  harmony  with  his  latter  years — Consistency  between  his  judgments 
and  his  life — His  great  delicacy  and  refinement — Benevolence — Death- 
bed scene — The  completion  of  his  seventieth  year — His  memoranda — 
Death — Description  of  his  person — Portrait  in  Law  Library. 


CHAPTER  VII.,        .        .        .        ;;•;••;       ...       396 

H.H.BRECKENRIDGE,L.L.D. — Born  in  Scotland,  1748 — Came  to  this  country 
at  five  years  of  age — Energy  of  character  sprung  from  his  difficulties — 
Education — Teacher  in  Maryland — Enters  Princeton  College — Next 
class  to  Luther  Martin,  Madison  and  Bradford — Graduates — Becomes 
chaplain — Resigns — Becomes  a  student  of  Judge  Chase — Admitted  to 
practice  in  1780 — Appointed  Associate  Judge  of  Supreme  Court — His 
economy — Death  in  1816 — A  man  of  genius  and  an  author — Modern 
Chivalry  and  Law  Miscellany — His  eccentricities — Want  of  harmony 
between  him  and  Judge  Yeates — Contrast  between  them — Habits  of 
Breckenridge  on  the  bench — Cause  of  difference  arising  between  asso- 
ciates— Age,  personal  appearance,  manners  and  dress — Judge  Breck- 
enridge on  the  circuit — Amusing  nonsuit — Well  deserved — Ej  ectment  be- 
fore Judge  Thomas  Smith — The  bribe  of  twenty  joes — Riding  naked 
through  a  storm — His  strange  mode  of  bathing — Not  deficient  in  firmness 


CONTENTS. 

or  courage— Abhors  duels— Affair  with  General  Lee— Cowskinning— 
Answer  to  a  challenge— Another  answer— Trial  of  Smith  and  Yeates  be- 
fore the  Senate — Judge  Breckenridge  approves  their  conduct,  and  asks  to 
be  embraced  in  impeachment — Judges  acquitted — Address  presented 
to  Governor  for  removal  of  Breckenridge— Rejected  by  Governor 
M'Kean— "May"  means  "wont" — Contempt  of  aristocracy — Historical 
Society— Virginia  act  of  Assembly  set  off  against  the  Pennsylvania  act 
—Open  "enclosure,"  &c.— Extracts— Res  Angustae  Domi— Advance- 
ment in  legal  practice — Avoiding  bad  habits  at  the  bar. 


CHAPTER  VIIL, •        .      -.     'V   418 

JOJH  BANNISTER  GIBSON,  L.L.D.— Birth— Death— Parentage— Account 
given  by  himself  of  his  maternal  ancestors — His  education — Enters 
grammar  school  at  Dickinson  College — Enters  college  in  his  twentieth 
vear — His  cotemporary — Does  not  matriculate — Commences  the  study 
of  the  law  with  Judge  Duncan — Admitted  in  1803 — His  study  of  medi- 
cine with  Dr.  M'Coskrey — Practical  application  of  medical  knowledge 
in  after  life — Case  of  Smith  v.  Cramer — His  last  opinion — After  admis- 
sion to  the  bar,  goes  to  Beaver  county — Leaves  it  and  goes  to  Hagers- 
town,  Maryland — Not  successful — Returns  to  Carlisle — Opens  his  office 
there — Obtains  practice — His  versatility  of  genius — Fondness  of  amuse- 
ment— Theatrical  exhibition  at  United  States  Arsenal — Directs  arrange- 
ments and  paints  scenery — Slandered  by  a  member  of  the  bar — Punishes 
him — Finds  his  mistake  and  corrects  it — Narrowly  escapes  a  duel — 
Becomes  a  legislator — Appointed  President  Judge  of  the  Common 
Pleas  for  Tioga  county — Marries — Upon  death  of  Judge  Breckenridge 
appointed  Associate  Justice  of  Supreme  Court,  by  Governor  Snyder — 
Solicited  to  accept  a  nomination  for  governor — Declines  it,  and  his  rea- 
sons for  so  doing — Description  of  his  person  and  manners — Deep,  but 
not  close  student — Not  a  good  judge  at  Nisi  Prius — Given  to  poetry 
and  drawing — Liked  law  as  a  science,  but  not  its  details — Occasionally 
rough,  but  not  resentful — Appointed  Chief  Justice  on  18th  of  May, 
1827 — Devotion  to  his  duties — Receives  degree  of  Doctor  of  Laws,  from 
University  of  Pennsylvania  and  Cambridge — His  resignation  and  re- 
appointment — An  injudicious  step — Its  effects  upon  him  and  the  court 
— Not  justified,  if  excused — A  mistake,  if  not  a  fault — Discussion  of 
the  subject — Would  have  been  a  great  general,  musician,  or  painter — 
Anecdote  relating  to  his  music  on  Sunday — Trial  before  legislative 
committee  of  an  associate  judge — Testimony  of  Judge  Gibson — A  re- 
buke— Acquittal  of  the  judge — Social  qualities  of  Gibson — Point  of  re- 
semblance to  Hamilton — His  account  of  his  journey  to  Beaver,  and  his 


CONTENTS. 

traffic  in  horses — His  charity  and  kindness — Erection  of  a  monument  to 
Jefferson  the  comedian — Portrait  of  Judge  Kennedy — Domestic  vir- 
tues— His  approaching  death — The  great  Audit — Death — Announce- 
ment by  Chief  Justice  Black. 


CHAPTER  IX., .441 

THE  BAR — The  members  of  bar — Martial  not  superior  to  legal  reputa- 
tion— Civil  law — Advocates  fought,  as  well  as  "  armed  warriors" — Judge 
Breckejiridge  and  Sallust — Comparison  of  generals,  historians  and  law- 
yers— A  trial,  the  image  of  a  field  of  battle — An  able  lawyer  would  make 
a  great  general,  but  an  able  general  would  not  make  a  great  lawyer — 
WILLIAM  LEWIS — Young  men — May  become  great  men — There  is  no 
superior  body  of  men,  to  the  legal  profession — Devotion  to  their  country, 
liberality,  &c.,  have  never  been  surpassed — Few  spots  upon  their  fame 
— Fame  from  the  earliest  times — Wilson,  Shippen,  Dickenson,  &c., 
succeeded  by  Lewis,  Rawle,  Ingersoll,  Tilghman,  Sergeant,  and  others 
— Grades  and  business  of  lawyers — Boyhood  of  Lewis — Throws  off  his 
gaberdine — Enters  the  office  of  Nicholas  Wain,  as  a  student — His  hum- 
ble condition — Doomed  to  menial  service — Refuses  compliance — Com- 
plaint against  him — Decision  of  Mr.  Wain — Lewis's  success — Admitted 
to  practice — His  post — Aristocracy  of  his  mind — Powers  of  reasoning 
— Manner  of  speech — Voice — Purity  of  his  English — Not  surpassed — 
Few  speeches  extant — Mr.  Pinckney's  objection  to  publishing  speeches — 
Imperfect  stenography — Thomas  Lloyd  the  only  reporter — Lewis's  effect 
upon  the  feelings — His  wit  and  sarcasm — Instance  in  his  last  criminal 
case — Differed  widely  from  Ingersoll,  Rawle,  and  Dallas,  who  were  re- 
markable for  courtesy — Lewis  spoke  well  at  all  times,  places,  and  upon 
most  subjects — Remark  to  Mr.  Robert  Wain — Overbearing  and  opiniona- 
tive — Quarrel  with  A.  J.  Dallas — His  extensive  business — His  philo- 
logy and  logic — Resembled  Demosthenes  more  than  Cicero — Want  of 
judgment  in  selecting  his  points — Argument  against  Alexander  Hamil- 
ton— Failure — He  was  a  careless  man  in  regard  to  papers  and  office — 
Retirement  to  his  country  seat — Died,  1819 — Description  of  his  person 
and  his  mode  of  speech — Animation — Opinion  of  the  Indian  delegation 
in  regard  to  him — A  fast  friend — Refuses  to  support  a  corrupt  cause — 
Condition  of  his  table  and  papers — Library — Condition  of  offices  gene- 
rally— Improvement  after  1820 — Difference  between  a  speech  delivered 
and  a  report  of  a  speech,  discussed — Charles  James  Fox's  remark 
upon  Sheridan's  speech — William  Pinckney  opposed  to  reports — Ex- 
cuse for  meagre  materials  of  speeches — The  substance  of  Mr.  Lewis's 


CONTENTS. 

.Jx 

speech  in  the  legislature  upon  the  attempted  impeachment  of  Chief 
Justice  M'Kean  and  others. 


CHAPTER  X., 470 

JARED  INGERSOLL,  L.L.D.— Birth— Reads  law  with  Joseph  Reed — Admitted 
to  Practice — Goes  to  London — Remains  abroad  five  years — Returns,  and 
is  admitted  to  practice  in  Supreme  Court,  in  1779 — Difference  between 
him  and  Lewis — His  mildness  and  moderation — Mode  of  speaking — 
Addressed  the  reason  and  judgment  of  his  hearers — His  great  success 
at  the  bar — Superiority  of  his  education — Foreign  travel — Inner  Tem- 
ple— Refinement  and  accomplishments — Delicacy  and  modesty — Avoids 
politics — Attachment  to  the  law — Oliver  Ellsworth — Lord  Lyndhurst, 
then  Sir  John  Singleton  Copley — Their  introduction — Industry  of 
Mr.  Ingersoll — Devotion  to  his  profession — Generosity  of  character — 
Just  and  humane — His  amenity  at  the  bar — Indulged  in  no  harshness — 
Ability  in  the  case  of  Evans — His  style  colloquial — Influence  with 
jurv — Freedom  from  excitement — Contrast  between  Mr.  Ingersoll  and 
Mr.  Lewis — Remarkable  for  his  success — Gained  almost  every  cause 
during  an  entire  session  of  the  Circuit  Court — Evans  v.  Pierce  and 
others — Case  of  Richard  Smith — Character  of  his  speeches — Speech  in 
the  case  of  Blount,  before  United  States  Senate — Comparison  with 
Lewis — Retains  his  power  to  the  last — Attributable,  with  himself  and 
others,  to  reverses  of  fortune — Fortune  renders  men  supine — Want  of 
it  compels  exertion — Great  men  rely  upon  talents  and  virtue — Sight 
defective — Took  notes,  but  rarely  read  them — Prepared  in  walking  and 
soliloquising — This  course  to  be  preferred — Rendered  necessary  by 
habit — Walter  Scott's  anecdote — The  loss  of  the  case  of  Clough — Peri- 
patetic preparation  not  unusual — Mr.  Ingersoll  appointed  second  time 
Attorney-General — Difficulty  with  the  democracy  in  making  appoint- 
ment— Mode  in  which  the  embarrassment  was  avoided — Appointed 
President  Judge  of  District  Court — Occupies  the  post  until  death — Re- 
marks thereon — Judge,  not  equal  to  the  advocate — Died  31st  of  Octo- 
ber, 1822,  aged  seventy-three — Left  a  great  name — Succeeded  by  emi- 
nent sons — The  Ingersolls  great  lawyers,  and  accomplished  advocates — 
Will  be  remembered  while  the  Philadelphia  bar  is  remembered — De- 
scription of  Mr.  Ingersoll's  person — Dress — Manners,  &c. — Remarks 
upon  the  dress  of  bar  generally — Harmony  and  friendship — No  jea- 
lousies— Social  and  convivial  parties — A  band  of  brothers — Avoiding 
and  condemning  all  artifice. 


CONTENTS. 


XXI 


CHAPTER  XL, 490 

WILLIAM  BRADFORD,  L.L.D. — Introductory  remarks — Birth  of  Bradford, 
1755 — Death,  1795 — Talents  and  honors  achieved  by  him — Enters  col- 
lege, (Princeton) — Friendship  with  Madison — Correspondence  between 
them — Degree  of  Bachelor  of  Arts — Master  of  Arts — Enters  the  office 
of  Edward  Shippen,  afterwards  Chief  Justice — Enters  camp  as  a  volun- 
teer— Promoted — Captain — Colonel  at  twenty-two  years  of  age — With 
army  at  White  Plains,  Fredericksborough,  and  Raritan,  in  1Y18 — Left 
the  service  next  year  on  account  of  ill  health — Returns  to  his  legal 
studies — Admitted  to  practice — Same  time  with  Moses  Levy — Ap- 
pointed Attorney-General  of  the  State,  in  place  of  Sergeant — Mr. 
Rawle's  opinion  of  him — Samson  Levy's  anecdote  in  regard  to  Hallo- 
well  and  Bradford — Appointed  Judge  of  Supreme  Court,  in  1791 — -In 
1794,  Attorney-General  of  United  States— Commissioner  upon  Western 
insurrection — His  report — Bill  for  abolition  of  punishment  of  death, 
except  in  murder  in  first  degree — Attributable  to  Bradford — Official 
duties  severe — Exposure  produced  fever — Resulted  in  death,  on  17th 
August,  1795 — Buried  at  St.  Mary's  Church,  Burlington— Monument 
and  inscription. 

CHAPTER  XIL,  .  -,  •  V  '  •  •-  fc  »  V  •'  "  •  •'. '.-  499 
WILLIAM  RAWLE,  L.L.D. — Born,  1759 — Died,  1836 — Parentage — Educa- 
tion— Studies  law  with  Counsellor  Kemp,  of  New  York — before  revolution 
visits  mother  country — Installed  a  Templar — Returns  in  1783 — On  the 
4th  September,  admitted  to  practice  in  Supreme  Court — His  personal  ap- 
pearance, and  accomplishments — Life  of  a  professional  man — Remarks 
— 1791,  appointed  by  Washington,  District  Attorney  for  United  States 
— Office  of  Attorney  General  tendered  to  him — Upon  election  of 
Mr.  Adams,  resigned — Not  simply  a  lawyer — A  poet ;  a  philosopher ; 
a  Christian — Translates  Plato — Notions  on  subject  of  religion — 
Church  of  England — Friends — Angelic  influence — Reflections  and 
prayers — Elected  honorary  member  of  Maryland  Abolition  Society 
— Also  Pennsylvania  Society — Became  President — His  professional 
efforts — I  become  his  student — Examination — His  fortune — His  mis- 
fortune and  afflictions — Loses  daughters,  son,  wife ;  all — Poetry  ex- 
pressive of  his  condition — Courtesy  of  manner — September,  1827,  Doc- 
tor of  Laws,  Princeton — In  1828,  same  from  Dartmouth — Applied  to 
for  a  new  edition  of  his  Constitutional  Law — Declines — Resignation  to 
death — His  mind  centred  upon  heavenly  things — He  passes  from  works 
to  rewards. 

VOL.  I. — 2 


xxjj  CONTENTS. 


CHAPTER  Xm., 529 

ALEXANDER  JAMES  DALLAS,  L.L.D.— Birth— Native  of  Jamaica— Education 
at.  Edinburgh — Westminster — A  pupil  of  Elphinstone — Father  a  physi- 
cian— Married — Lost  his  inheritance — Its  results — Thrown  upon  his 
own  resources — Left  Jamaica  for  Philadelphia — Arrives  on  loth  June, 
1783 — Enamoured  of  republican  institutions — Takes  the  oath  of  alle- 
giance— Engages  in  preparing  for  admission  to  the  bar— Admitted  in 
1785 — Prepares  his  Reports,  and  contributes  to  literary  magazines — 
Appointed  Secretary  of  Commonwealth,  1791 — Calls  his  son  after  Go- 
vernor Mifflin — A  member  of  St.  George's  Society — A  trustee  of  the 
University — Writes  the  address  of  the  provost — Secretaryship  renewed 
— Paymaster-General  of  the  United  States  forces,  in  suppressing  wes- 
tern insurrection — Receives  the  approval  of  Washington — 1796,  Secre- 
tary again — Publishes  laws  of  Pennsylvania — Engaged  in  Blount's 
case,  before  Senate  of  United  States — Extract  from  his  speech — Go- 
vernor M'Kean  appoints  him  Secretary  for  the  fourth  time,  in  1799 — 
Appointed  District  Attorney  of  the  United  States  by  Mr.  Jefferson, 
1801 — Same  year  made  recorder  of  Philadelphia,  by  Governor  M'Kean 
— Resigns  from  incompatability  of  offices — A  zealous  democrat — Still 
devotes  himself  to  his  profession — Receives  various  testimonials  of 
gratitude  from  party  and  clients — In  1814  becomes  Secretary  of  Trea- 
sury of  United  States — Fidelity  in  office — Assumes  the  trust  of  acting 
Secretary  of  War — Delicate  and  satisfactory  performance  of  duty — Re- 
signs his  office  in  1816,  and  returns  to  his  profession — Great  success — 
Trial  of  Sinickson's  Will,  at  Trenton — Labor — Annoyance — Gout — 
Dies  immediately  upon  his  return  home — Personal  description — 
Elegant  manners — Family — Descendants — Gratitude  of  his  party — 
Offices  conferred  upon  him  and  family. 


CHAPTER  XIV.,       -.'   .v     ."..;..        .        .        .        .      542 

SAMPSON  LEVY — Legal  and  literary  knowledge — Favor  with  the  bar — 
Lucrative  practice — Good  humor — Reads  law  with  his  brother — Very 
popular,  kind  and  courteous — The  Sampson  of  the  bar — Off-hand  speeches 
— Judge  Washington's  remark  upon  his  speeches — Abundant  language 
'  — Hopeful  in  all  cases — Not  critical  in  language — Well  rounded  periods 
— But  incomprehensible — Instances — Practical  wit — Case  of  division  of 
fees — Amusing — Colloquial  powers — M'Nally  on  Evidence — Rebuke  of 
Mr.  Hare — Imperfect  education — Ambitious  of  literary  distinction — In- 
vitation to  dine  with  Joseph  Dennie — Disappointment — Mistake — 
Another  disappointment — Cramming  himself  with  Plutarch — Labor  and 


CONTENTS. 


xxiii 


learning  go  for  nothing — His  literary  preparation  for  a  dinner  party — Al- 
ways falls  on  his  feet — His  opinion  upon  a  will — Fee  of  one  dollar — Im- 
posed upon — A  hoax — Case  in  New  Jersey — Offers  for  admission — Re- 
quired to  be  examined — Agrees,  provided  he  may  first  examine  the 
judges — Fees  put  in  his  hand  while  speaking,  by  A. — White  witness  to 
give  color  to  case — Other  amusing  instances  of  his  blunders,  or  his  wit — 
Mr.  Baize  Newcomb — Argument  of  counsel — Best  part  of  the  case — 
Repartees  by  Mr.  Levy — Extraordinary  sentences  from  his  speeches — 
Mr.  L.  of  Jewish  extraction — Convert  to  Christian  faith — Fifteenth  De- 
cember, 1831,  dies — Description  of  his  person — Business  diminished  in 
latter  part  of  his  life — Lost  none  of  his  cheerfulness,  or  attachment 
to  the  bar — Always  maintained  that  "lawyers  were  the  salt  of  the 
earth." 


CHAPTER  XV., 557 

RETROSPECT  AND  PROSPECT — Lights  of  the  law — Their  influence — Phila- 
delphia the  centre  of  the  Union — Purity  of  the  bar — Familiarity  and 
kindness  to  the  young — They  were  the  fathers  of  the  bar — Great  men, 
in  great  as  well  as  small  things — Had  not  reached  the  fast  age,  &c. — 
Exempt  at  that  time  from  bad  professional  habits — Orators  as  well  as 
lawyers — Tried  cases,  not  so  rapidly,  but  better  than  now — Mode  of 
conducting  cases — Departure  from  their  examples — Quarrelsome  and 
crafty  men  avoided — No  American  reports,  except  Kirby  and  Dallas — 
Founders  and  expounders  of  the  law — They  laid  its  foundations  Broad 
and  strong — Not  case  lawyers — Drank  from  the  fountain  head — A 
blessing  to  their  successors — Civil,  but  not  servile  to  the  court — Lewis's 
conduct  towards  Judge  Chase — No  more  than  others  would  have  done 
— Mutual  civilities  between  court  and  counsel — Harmony — When  busi- 
ness commenced  conversation  ended — Demeanor  of  Supreme  Court  of 
United  States — Effect  upon  the  bar — Judges  of  State  Courts — Deport- 
ment and  dignity — Permitted  no  undue  familiarity — Etiquette  of  courts 
necessary  to  be  preserved — Strangers  and  loungers  excluded — Remark 
of  Lord  Bacon — Former  regulations  better  than  the  present — The  pre- 
sent much  to  be  condemned — Different  in  England — A  reform  sug- 
gested— Annoyance  attributable  to  wretched  court  rooms — Better  in 
Circuit  and  District  Courts  of  United  States — Better  in  the  counties 
throughout  the  State — In  approving  the  past  we  would  not  disparage 
the  present  bar — Defects  in  manner,  not  matter — Too  much  despatch — 
Adequate  knowledge  of  the  bar  and  the  bench — Unless  the  evils  noted 
be  corrected  they  will  increase,  and  lead  to  pernicious  if  not  destruc- 
tive consequences — Old  age  enlisted  with  the  past  against  the  present — 


XXIV 


CONTENTS. 


Retrospect  magnifies  the  past,  as  hope  in  youth  magnifies  the  future — 
Old  age  imputes  the  changes  in  its  own  condition  to  surrounding  objects 
— Old  people  tell  us  the  world  is  not  as  it  used  to  be — Difference  be- 
tween the  age  of  seventy  and  twenty — We  are  not  aware  of  the  effects 
of  time — Judgment  suffers,  in  deterioration  of  the  other  faculties — Com- 
parison between  youth  and  age — Mental  faculties  fail  together,  and 
contribute  to  each  others  infirmity — Exemplified — Mind  obstructed  by 
the  condition  of  the  senses — "Man  a  miracle" — Man  sees  everything 
through  himself — Whatever  is,  is  right — If  perfect  here,  but  little  to 
look  to,  hereafter — End. 


APPENDIX  A.,        ..- 573 

ANCIENT  INDICTMENTS — George  Robinson,  butcher — Selling  strong  drink 
without  license — Assault  and  battery — Drunkenness — Passing  "bad 
counterfeit  coine" — Quashed  for  insufficiency — Balmasqu<j — "For  hav- 
ing of  to  wifes  at  once" — Know  Nothings — Curious  petitions — Sunday 
labor — Obstructing  street — Loose  indictments — forestalling. 


APPENDIX  B., 582 

Record  in  Wilson  v.  Hill — Plea — Demurrer — Bills  of  exception. 


AUTO-BIOGRAPHY,  though  sometimes  necessary,  is 
rarely  agreeable,  either  to  the  Author  or  the  reader. 
Even  when  written,  as  Csesar  wrote  his  Commentaries, 
in  the  third  person,  the  first  person  is  always  reflected 
in  the  third,  and  imparts  an  egotism  to  the  work  that 
cannot  be  disguised.  It  has  been  thought  proper, 
therefore,  in  order  to  avoid  as  far  as  possible  this 
objection,  to  precede  the  present  Work  by  a  Sketch  of 
the  Life  of  the  Author,  chiefly  taken  from  "Living- 
ston's Biographies."  But,  it  may  be  said,  why  not 
oinit  the  Sketch  altogether  ?  the  answer  simply  is,  that 
as  the  publication  relates  to  a  professional  experience 
of  Forty  years,  the  public  has  a  right  to  know  what 
opportunities  or  advantages  were  enjoyed  by  the  Au- 
thor, calculated  to  qualify  him  to  speak  of  those  occur- 
rences which  he  professes  to  describe.  This  motive  is 
offered  as  a  candid  apology,  for  what  otherwise,  would 
have  been  properly,  and  willingly  avoided. 

VOL.  i. — 3 


BIOGRAPHICAL  MEMOIR 


OF 


DAVID    PAUL    BROWN, 


THE  subject  of  this  Memoir  was  born  in  the  City  of 
Philadelphia,  on  the  28th  of  September,  in  the  year 
seventeen  hundred  and  ninety-five,  and  is  now  sixty- 
one  years  old. 

It  matters  little  "to  whom  related  or  by  whom 
begot ;"  it  will,  at  all  events,  be  sufficient  to  say,  that 
his  ancestors,  who  belonged  to  the  Society  of  Friends, 
and  who  were  rather  remarkable  for  their  piety  than 
any  worldly  accomplishment,  came  from  England  with 
Lord  Berkley,  upon  the  first  settlement  of  New  Jersey, 
and  resided  at  Berkley,  in  Gloucester  county. 

The  father  of  Mr.  Brown,  whose  name  was  Paul, 
and  who  was  born  in  1767,  removed  to  Philadelphia 
in  the  year  1790,  and  there,  shortly  after,  married 
Rhoda  Thackara,  a  native  of  Salem. 

David  Paul  Brown  was  the  only  son  of  this  mar- 


XXVlii  BIOGRAPHICAL    MEMOIR. 

riage ;  and  his  parents  being  blessed  with  an  abundant 
fortune,  and  what  is  much  more  to  the  purpose,  with 
a  spirit  of  the  most  unbounded  liberality,  spared  no 
expense  in  the  education,  and  mental  and  physical 
improvement  of  their  child. 

It  must  not  be  understood,  however,  that  like  a  hot- 
house plant,  he  was  hurried  in  his  growth  to  prema- 
ture ripeness ;  upon  the  contrary,  nature  was  left  to 
her  own  gradual  development,  with  her  sluggishness 
sometimes  stimulated,  and  her  exuberance  sometimes 
checked,  as  the  season  or  occasion  might  appear  to 
require. 

Until  the  age  of  eight  years,  the  education  of  the 
boy  was  exclusively  the  business  of  his  fond  parents, 
and  more  especially  of  his  mother. 

To  her  was  mainly  referred  his  intellectual  and 
moral  and,  above  all,  his  religious  instruction .;  and  he 
has  often,  in  more  advanced  age,  been  heard  to  declare 
that  the  lessons  of  his  mother  were  more  deeply  im- 
pressed upon  his  mind,  and  exercised  a  more  powerful 
influence  upon  his  life  and  fortunes,  than  all  the  other 
instruction,  imparted  by  the  host  of  teachers  to  wrhom 
his  education  was  from  time  to  time  confided. 

By  her,  he  was  taught  to  read  with  the  greatest 
precision — not  in  the  whining  slang  of  the  schools — 
not  coldly  and  artificially,  but  in  conformity  with  the 
spirit  and  design  of  the  authors  to  whom  his  early 
attention  was  directed.  With  the  mother  and  the 


BIOGRAPHICAL    MEMOIR. 

son,  instruction  was  a  work  of  love — of  maternal 
and  filial  love;  and  the  advancement  was  in  pro- 
portion to  the  holy  influence  by  which  it  was  sti- 
mulated. 

No  rigid  and  unbending  rules — no  chastisement — 
no  fears — all  was  voluntary :  and,  therefore,  all  was 
successful.  Family  hopes  being  centred  upon  the 
boy,  and  the  cares  of  the  world  not  encroaching  upon 
the  indulgence  of  parental  attention,  it  will  not  be  a 
matter  of  surprise  to  learn,  that,  when  he  had  passed 
into  the  hands  of  other  teachers,  though  at  an  early 
age,  and  though  he  knew,  of  course,  but  little,  what  he 
did  know,  was  letter  known,  more  perfect,  than  usual 
under  the  ordinary  courses  of  instruction. 

He  wrote  well,  for  a  child ;  read  admirably ;  com- 
posed his  doggerel  rhyme,  sketched  and  painted ;  talked 
accurately,  and  with  a  nice  discrimination  in  language  ; 
and,  above  all,  was  taught,  while  at  his  mother's  apron 
strings,  to  think,  to  reason,  as  a  child  to  be  sure,  but 
still  as  a  happy  and  an  ambitious  child. 

The  time  at  last  came  when  he  was  to  be  handed 
over  to  sterner  teachers.  Still,  however,  his  instruc- 
tion may  be  said  to  have  been  domestic. 

Private  teachers,  upon  all  branches,  were  employed ; 
an  Italian  for  drawing  in  crayons  and  oil  colors — 
English  artists  for  landscape  and  flowers — a  French- 
man for  fencing  (more  for  the  exercise  than  the 
art,)  and  for  mathematical  instruction,  one  -of  the 


xxx  BIOGRAPHICAL    MEMOIR. 

first   professors   in  the   country — the   late   Mr.    De- 
lamar. 

To  prevent,  however,  his  being  an  entirely  home- 
bred youth,  his  affectionate  parents,  under  the  impres- 
sion that  their  son  was  sometime  to  mingle  in  society, 
caused  him  also  to  be  sent  to  some  of  the  best  schools, 
where,  there  are  those  now  living  who  can  witness, 
that  he  was  always  at  the  head  of  his  class ;  and  that 
too,  with  apparently  but  little  effort  or  study. 

The  evenness  of  his  temperament,  indeed,  seemed 
always  to  give  him  full  command  of  his  faculties ;  and 
when  they  did  not  embrace  a  subject,  he  was  never 
afraid  or  ashamed  to  acknowledge,  instead  of  attempt- 
ing to  excuse  it,  and  thereby  afforded  the  best  opportu- 
nity for  improvement,  in  that  in  which  he  was  deficient. 

His  memory,  though  not  otherwise  remarkable,  was 
perfectly  clear  and  distinct.  He  either  remembered 
or  did  not  remember — there  was  neither  doubt  nor  hesi- 
tation about  him ;  and  although  he  stood  first  in  his 
class,  and  was  willing  to  help  others,  he  never  relied 
upon  his  class,  but  upon  himself.  He  was  of  course, 
the  pride  of  his  father,  and  the  delight  of  his  mother's 
heart. 

Every  possible  indulgence  was  lavished  upon  him ; 
every  recreation  not  only  freely  furnished,  but  sug- 
gested. He  drew  upon  his  father's  exchequer  at  plea- 
sure and  without  limit ;  and  the  extent  of  his  purse, 
would  have  shamed  the  matured  magnificoes  of  the  day. 


BIOGRAPHICAL    MEMOIR.       . 

In  after  life  he  has  often  been  heard  to  say,  that 
he  was  never  so  rich  and  happy  as  in  his  early 
youth;  for  then,  in  the  language  of  Socrates,  he 
wanted  least,  and  therefore  approached  nearest  to  the 
gods,  who  want  nothing. 

With  him,  money  seemed  to  have  utterly  lost  its 
value— it  was  too  common  to  be  impressive — its 
receipt  gave  no  pleasure — its  expenditure  no  annoy- 
ance. Neither  seemed  to  cost  anything ;  and  from 
that  time  to  the  present,  though  his  professional  in- 
come has  exceeded  a  quarter  of  a  million,  the  same 
indifference,  the  same  carelessness,  the  same  reckless- 
ness in  regard  to  wealth,  has  characterized  his  career. 

On  this  subject  we  have  heard  a  characteristic 
anecdote,  which  we  cannot  do  better  than  relate, 
although  the  occurrence  took  place  some  fifteen  years 
after  Mr.  Brown's  admission  to  the  Bar. 

The  late  William  Rawle,  with  whom  Mr.  Brown 
was  a  favorite  student,  towards  the  close  of  life,  made 
Mr.  Brown  a  visit,  and  found  him  engaged  in  balanc- 
ing his  books. 

After  some  conversation,  Brown  turned  to  his  vene- 
rable preceptor  and  said:  "My  dear  Mr.  Rawle, 
fifteen  years  ago  I  gave  you  my  check  for  $400,  in 
return  for  your  valuable  legal  instruction ;  since  that 
time,  I  find  I  have  received  in  my  professional  career, 
upwards  of  $100,000."  "I  know,"  replied  the  pre- 
ceptor (himself  a  most  liberal  minded  man,)  "you 


XXxii  BIOGRAPHICAL    MEMOIR. 

have  been  very  busy,  and  it  is  necessary  to  be  very 
busy,  for  a  young  man  to  make  such  a  sum  in  so 
short  a  time."  " 0,  but,"  rejoined  Brown,  "you  don't 
know  how  busy  I  have  been,  I  have  spent  it  all; 
there  is  not  a  dollar  left.  Yes,  I  have  spent  it  upon 
principle.  There  are  two  kinds  of  extravagance. 
That  which  arises  from  a  love  of  display,  and  that 
which  springs  from  contempt  of  mere  wealth.  Mine 
is  the  last.  If  I  could  become  rich,  I  should  become 
indolent,  and  lose  in  fame  what  I  gained  in  money. 
This  is  not  the  case  perhaps  with  all,  but  it  is  with 
me."  The  old  gentleman  laughed  heartily,  and  they 
passed  to  other  subjects  more  agreeable  to  both. 

To  show  the  high  estimation  in  which  the  pupil 
was  held  by  his  revered  preceptor  (than  whom  there 
never  was  a  purer  man,  or  more  accomplished  gentle- 
man,) we  cannot  do  better  than  insert  in  this  ram- 
bling sketch  the  following  letter,  written  by  him  to 
Mr.  Brown,  some  ten  years  after  his  admission; 
surely  the  censure  or  applause  of  such  a  man,  is  worth 
more  than  that  of  a  whole  theatre  of  ordinary  critics. 

"  MY  DEAR  sm  : 

"  You  borrowed  of  me,  some  time  ago,  the  first  volume  of  Guth- 
rie's  Quintillian,  will  you  allow  me  to  send  you  the  second,  with  the 
request  that  you  will  receive  them  both  into  your  library. 

"  The  plain  binding  will  not  affect  the  internal  merit  of  an  author, 
who,  the  first  that  is  known  to  us,  systematically  and  fully  laid  down 
the  precepts,  not  only  of  Forensic,  but  of  general  oratory;  and  who, 
were  he  now  living,  would  be  delighted  to  perceive  a  full  illustra- 


*  4 

BIOGRAPHICAL    MEMOIR.  XXXiii 

tion  of  what  he  requires  to  form  an  accomplished  orator,  in  your- 
self. 

"  With  unfeigned  respect  and  esteem, 

"I  am,  dear  sir,  your  affectionate  friend, 

"W.  RAWLE. 

"March  31**,  1828. 
"To  DAVID  PAUL  BROWN,  ESQ." 

But  we  have  wandered  from  our  task — let  us  return : 

At  the  age  of  fifteen,  in  the  year  1810,  the  subject 
of  this  memoir  lost,  after  a  protracted  illness,  his 
devoted  mother.  She  died,  leaving  him  her  blessing ; 
and  what  was,  if  possible,  even  better,  the  benefits  of 
her  instruction,  and  the  example  of  a  life  of  Christian 
piety  and  practical  virtue. 

This  was  a  sad  blow  to  domestic  happiness  and  filial 
hope.  But  though  cut  loose  from  his  moorings  in  a 
mother's  bosom,  he,  nevertheless,  enjoyed  the  fostering 
care  and  tenderness  of  an  affectionate  father;  yet  who 
at  such  an  age  can  supply  a  mother's,  and  such  a 
mother's,  loss  ? 

The  shock  for  a  long  time  seemed  to  have  paralyzed 
the  boy.  He  became  moody,  confined  himself  to  the 
house,  resorted  to  no  exercise,  engaged  in  no  amuse- 
ments, moped  over  his  books  day  after  day,  and  month 
after  month,  until  at  length  he  dwindled  into  a  mere 
anatomy  of  himself. 

The  father  naturally  became  alarmed — the  physician 
shook  his  head— all  books  were  condemned — all  stu- 
dies prohibited ;  yet  the  prohibition  only  strengthened 


BIOGRAPHICAL    MEMOIR. 

the  appetite  for  the  forbidden  fruit.  At  last,  in  order 
to  a  change  of  scene,  it  was  determined  that  the  invalid 
should  be  sent  to  Massachusetts,  to  the  Rev.  Dr.  Dag- 
gett,  a  distinguished  scholar,  in  order  that  he  might 
advance  himself  in  the  knowledge  of  the  classics. 

Apparently  indifferent,  he  bade  farewell  to  his  sur- 
viving and  sorrowing  parent,  and  took  up  his  abode 
with  the  reverend  clergyman,  where  he  remained  seve- 
ral years,  receiving  all  the  time  his  former  ample  pecu- 
niary allowance.  It  was  during  this  absence,  while 
enjoying  the  benefits  of  a  vacation,  that  he  wrote  the 
"  Sandemanians,"  a  short  extract  from  which  may  be 
pardoned,  as  exhibiting  his  style  of  composition,  and 
expressing  his  views  at  that  early  period,  on  the  sub- 
ject of  simplicity  in  the  worship  of  the  Most  High : — 

"  How  great  is  the  error  of  the  supposition,  that  ornament  and 
splendor  are  calculated  to  increase  the  attractions  and  solemnities  of 
Religion!  Never  is  she  so  impressive,  so  awe-inspiring,  so  lovely — 
so  altogether  heavenly,  as  when  exhibited  in  her  most  artless  simpli- 
city. The  work  of  man  may  be  improved  and  adorned  by  the 
inventions  of  man — its  defects  may  be  concealed  and  its  beauties 
heightened ;  but  the  works  and  emanations  of  the  Deity  are  beyond 
the  reach  of  human  art,  and  are  impaired  in  their  effect  in  propor- 
tion as  they  are  either  decorated  or  disguised.  Neither  the  sun  nor 
the  stars  can  ever  be  delineated  by  the  most  perfect  artist.  The 
works  of  the  Almighty  are  not  to  be  counterfeited — far  less  are  the 
principles  of  Divine  grace  to  be  recommended  to  regard  and  venera- 
tion by  the  glare  and  glitter  of  magnificent  altars,  or  temples  tower- 
ing to  the  skies.  These  are  the  outward  habiliments  and  flourishes 


BIOGRAPHICAL    MEMOIR.  XXXV 

of  piety,  and  not  its  soul;  they  contribute  to  disturb  and  distract, 
rather  than  to  subdue  and  concentrate  the  thoughts  of  the  worship- 
per; they  subject  man  to  look  at  his  Creator,  as  through  a  glass, 
darkly,  instead  of  viewing  him  face  to  face,  and  bowing  at  once  in 
abject  nothingness,  before  the  dazzling  and  awful  effulgence  of  eter- 
nal glory.  I  do  not  know  that  I  have  succeeded  in  these  brief 
remarks  in  furnishing  the  reasons  for  a  preference  of  unostentatious 
worship,  but  I  know  upon  the  occasion  referred  to,  those  reasons 
were  so  deeply  felt  as  never  to  be  forgotten." 

At  the  expiration  of  his  term  of  studies,  he  returned 
with  the  highest  honors  to  his  paternal  home,  feebler 
in  body  than  at  the  time  of  his  departure,  but  strength- 
ened and  enlarged  in  mind. 

Upon  being  received  into  his  father's  arms,  that 
tender  parent,  unable  to  subdue  his  emotions,  ex- 
claimed, "  My  dear  boy,  you  are  reduced  to  a  skele- 
ton." "Yes,  father,"  returned  th'e  boy,  "but  you  will, 
I  hope,  find  that  in  one  sense  I  am  much  more  substan- 
tial than  when  I  left  you ;" — of  course  referring  to  the 
improvement  of  his  mind. 

Everything  was  again  made  tributary  to  his  comfort. 
He  had  his  horses  at  command,  but  never  rode ;  was 
visited  by  others,  but  rarely  went  into  society ;  rose 
early ;  retired  invariably  before  ten  o'clock ;  and  lived 
in  the  most  frugal  and  abstemious  manner  in  the  midst 
of  luxury. 

Having  now  reached  his  seventeenth  year,  it  became 
necessary  that  he  should  make  choice  of  a  profession. 


XXXVI  BIOGRAPHICAL    MEMOIR. 

He  seemed  rather  inclined  to  the  law,  (being  at  that 
early  age  a  ready  declaimer,)  but  so  indifferent  was 
his  choice,  that  he  at  once  relinquished  it  in  favor  of 
medicine,  at  the  mere  suggestion  of  his  father ;  and 
was  accordingly  introduced'  to  Dr.  Benjamin  Rush,  as 
his  pupil. 

This  was  an  unlucky  choice  of  a  profession.  No- 
thing is  more  pernicious  to  a  feeble  and  nervous 
frame,  than  the  study  of  disease.  We  are  apt  to 
imagine  that  we  are  afflicted  with  almost  all  the  physi- 
cal ills  that  "flesh  is  heir  to."  Hypochondria  not 
unfrequently  is  the  result;  and  in  the  preparatory 
effort  to  cure  others,  we  often  destroy  ourselves.  Like 
a  confirmed  dyspeptic,  we  most  crave  the  very  food, 
that  most  contributes  to  perpetuate  or  strengthen  our 
complaint. 

In  about  six  months  the  student  was  reduced  to 
the  condition  of  an  almost  hopeless  patient ;  but  how 
eventful  is  life !  Just  at  this  time,*  full  of  age  and 
honor,  Dr.  Rush  died,  and  as  the  attachment  was 
rather  to  the  physician  than  the  science,  an  entire 
revolution  in  the  career  of  our  subject  was  at  once 
produced.  Prior  to  this,  some  doubts  of  the  pro- 
priety of  the  selection  glanced  into  the  father's  mind. 
Now  these  doubts  worked  an  entire  change. 

The  pupil  was  at  once  withdrawn  from  the  science 

*  Dr.  Benjamin  Rush  died  19th  of  April,  1813,  in  the  sixty-eighth  year 
of  his  age. 


BIOGRAPHICAL    MEMOIR.  XXXvii 

of  physiology  and  pathology,  and  his  original  inclina- 
tion to  the  law  having  been  somewhat  strengthened, 
he  was  placed  under  the  instruction  and  in  the  office 
of  one  of  the  most  distinguished  lawyers  in  the  Union, 
the  late  William  Rawle,  a  man  at  that  time  of  princely 
fortune,  and  whose  fame  was  co-extensive  with  the 
country. 

It  is  unnecessary  to  carry  our  reader  through  a  law 
student's  studies.  Let  it  suffice,  that  for  the  first 
year  our  student  read  for  twelve  hours  a  day.  After 
that  time,  by  the  advice  of  his  preceptor,  he  reduced 
the  time  to  eight  hours,  and  finally  settled  down,  upon 
six  hours.  He,  in  addition  to  this,  regularly  attended 
the  courts  for  several  hours  in  the  day,  during  the 
last  two  years  of  his  novitiate,  and  thereby  became 
not  only  familiar  with  the  usual  form  of  business,  but 
was  better  acquainted  with  the  former  and  elder  mem- 
bers of  the  bar,  than  most  members  of  the  legal  pro- 
fession, who  were  many  years  his  senior.  Indeed,  his 
intercourse  was  chiefly  with  the  aged  men  of  the  pro- 
fession— Lewis,  Ingersoll,  Tilghman,  Dallas,  Binney 
and  Sergeant,  were  then  in  their  full  vigor,  and  he 
enjoyed  the  benefits  of  their  forensic  example;  and 
truly  the  country  never  witnessed  a  more  glorious 
example. 

In  the  latter  part  of  the  year  1815,  a  year  before 
the  termination  of  his  course  of  study,  a  second  shaft 
from  the  insatiate  archer  deprived  him  of  his  father, 


114 

-«<a...-JHh_    A- 


XXXViii  BIOGRAPHICAL    MEMOIR. 

and  left  him  alone  in  the  world,  possessed,  it  is  true, 
of  a  competent  fortune,  but  cut  loose,  as  it  were,  from 
all  those  kindred  ties  that  make  life  most  precious. 
But  he  that  has  suffered  the  greatest  evil  in  life,  can 
suffer  no  more ;  like  death,  it  cures  every  thing. 

This  last  blow,  struck  from  him  his  last  dependence, 
and  from  that  moment,  though  he  stood  alone,  he 
relied  only  upon  himself,  and  stood  firmly.  "My 
chief  grief,"  said  he,  in  after  days,  while  in  the  full 
tide  of  success, 

"  My  chief  grief  is,  that  those  who  watched  over  my  spring  and  my 
summer  with  such  untiring  affection,  should  have  never  lived  to 
behold  the  harvest  of  their  own  parental  care.  I  should  have  been 
most  happy  just  to  show  that  their  attentions  were  not  entirely  unde- 
served and  unrequited. 

" '  Man  proposes  and  God  disposes.'  Ambition  at  length  took 
the  place  of  filial  love ;  time  cicatrized  the  wounds  of  the  heart ; 
but  I  shall  never  forget,  that  those  for  whose  good  opinion  I  was 
most  solicitous — those  to  whom  I  was  bound  most  deeply  in  grati- 
tude and  filial  duty,  received  no  other  repayment  than  from  the 
tears  of  affection  and  sorrow,  that  were  shed  upon  their  graves. 
In  short,  my  ambition  was  divested  of  its  chief  pride ;  and  to  this 
moment,  in  my  greatest  professional  triumphs,  my  mind  still  recurs 
to  the  past,  and  cannot  but  acknowledge  that  its  enjoyment  is 
incomplete." 

In  the  month  of  September,  1816,  at  the  age  of 
twenty-one  years,  Mr.  Brown  having  read  law  for 
nearly  four  years,  and  undergone  the  usual  examina- 
tion, was  admitted  to  practice  in  the  District  Court 


BIOGRAPHICAL    MEMOIR. 

and  Court  of  Common  Pleas  in  the  City  of  Philadel- 
phia, and  soon  after  he  was  admitted  to  practice  in  the 
Supreme  Court  of  the  State,  and  in  the  District,  Cir- 
cuit, and  Supreme  Courts  of  the  United  States.  (We 
cannot  do  better,  perhaps,  by  way  of  offering  some 
notion  of  his  difficulties,  than  to  introduce  here  into 
our  hasty  sketch  a  description  of  his  first  cause,  from 
his  own  pen  entered  in  his  diary,  some  years  after- 
wards.) 

"After  toiling  through  the  usual  term  allotted  to  students  of  the 
legal  profession,  on  the  day  on  which  I  completed  my  twenty-first 
year  I  submitted  myself  to  the  necessary  examination,  and  was 
admitted  to  practice  as  a  member  of  the  Philadelphia  bar.  No 
very  distinct  impression  of  the  emotions  then  felt  remains  to  me 
now,  after  a  lapse  of  many  years.  Neither  my  prospects  nor  my 
hopes  were  the  brightest,  and  although  a  devotee  to  my  profession, 
mine  was  a  devotion  not  founded  of  course  in  experience;  and 
therefore  liable  to  be  much  impaired,  if  not  utterly  destroyed,  by 
encountering  obstacles  not  anticipated,  or  neglect,  still  more  difficult 
to  be  endured.  Yet  from  neither  had  I  any  claim  to  exemption,  at 
least  so  I  think,  in  more  matured  reason,  in  birth,  in  fortune,  or  in 
talents.  For  the  most  part  unknown  among  the  members  of  the 
bar,  with  a  moderate  patrimony,  and  with  the  benefit  of  the  best 
education  which  the  times  could  afford,  I  still  felt,  in  presenting 
myself  before  the  public,  that  everything  must  depend  upon  two 
contingencies ;  first,  whether  the  opportunity  would  be  afforded  for 
a  favorable  display  of  the  limited  abilities  which  I  might  possess ; 
and  secondly,  whether  I  should  be  capable  of  employing  that  oppor- 
tunity to  advantage.  Doubts  like  these  must  more  or  less  influence 
every  rational  being  in  entering  upon  the  prosecution  of  every  sci- 


X}  BIOGRAPHICAL    MEMOIR. 

ence,  and  in  none  more  than  the  arduous  science  of  the  law.  My 
office  was  opened ;  but  in  despite  of  the  allurements  of  a  well-exe- 
cuted sign,  and  a  tolerable  location  for  business,  weeks  and  months, 
I  had  almost  said  years,  rolled  over  my  head,  without  improving  my 
pocket,  brightening  my  prospects,  or  increasing  my  affection  for  the 
object  of  my  choice.  Indeed,  I  am  not  certain  that  my  ambition 
was  not  a  little  chilled,  and  I  am  certain,  that  without  the  slightest 
inclination  actually  to  abandon  my  forensic  career,  I,  nevertheless, 
occasionally  looked  with  something  like  loathing,  to  some  half  a 
dozen  books  which  decorated  a  solitary  shelf  in  my  study.  I  found 
that  the  notion  entertained  prior  to  admission,  that  when  my  '  calling 
and  election'  had  been  made  sure,  I  should  be  disposed  to  enjoy  in 
delightful  composure  the  companionship  of  the  sages  of  the  law,  was 
but,  a  notion,  and  that  it  was  totally  unable  to  resist  the  superior 
interest  and  attraction  with  a  youthful  mind,  which  was  furnished 
by  a  flood  of  poetry  and  romance,  daily  issuing  from  the  press,  and 
literally  flooding  the  land.  And  why  should  it  be  considered 
remarkable  ?  No  man,  in  his  senses,  ever  pretended  that  in  itself 
alone,  the  acquisition  of  any  science  could  be  matter  of  delight.  It 
is  in  the  vista  which  it  is  supposed  to  open  to  professional  elevation 
— to  wdrldly  advancement — phantoms  which  too  often  vanish  as  we 
approach  them — that  its  charms  chiefly  consist.  My  eyes  were 
already  closed  upon  these  illusions,  and  the  mind,  in  the  effort  to 
relieve  itself  from  despair,  turned  to  other  subjects,  if  not  more  sub- 
stantial, still  more  fascinating  for  the  time.  The  end  of  the  first 
year  found  me  occupied  with  everything  but  law.  The  tranquillity 
of  my  office,  had  I  think,  never  in  a  single  instance,  been  disturbed 
or  invaded  by  the  foot  of  any  obtrusive  client — I  was  about  to  say, 
of  any  individual — for  even  courtesy  shrinks  from  and  shuns  the 
unfortunate ;  when,  on  the  first  morning  of  the  ensuing  year,  a  fellow- 
student  of  mine,  who  was  admitted  about  the  same  time,  and  who 
has  since  risen  to  considerable  eminence,  stalked  into  my  office,  as 
he  said,  to  offer  his  condolence; — and  who  could  have  been  more 


BIOGRAPHICAL    MEMOIR.  xjj 

sincere  in  his  sympathies  ?  He  had  also  had,  not  a  single  client — 
'Not  a  client!'  said  I;  and  I  am  afraid  there  was  a  lurking  satisfac- 
tion in  the  inquiry.  'Not  one,  by  all  that  is  wonderful!'  said  he; 
'that  is,  not  a  solitary  fee;  and  yet,  I  don't  think  I  have  any  right 
to  complain.'  'No  right  to  complain !'  I  rejoined ;  'that  may  be,  but 
you  have  nevertheless  a  clear  chance  of  starving ! — to  starve  and  not 
complain — this  is  an  ungrateful  world  :'  and  I  was  going  on  to  say 
something  more,  when  he  requested  me  to  listen  to  him  a  moment, 
and  I  should  perceive  that  his  remarks  were  perfectly  just.  '  I  have 
been,'  said  he,  'like  yourself,  a  year  at  the  bar — I  have  never 
received  a  farthing,  or  been  retained  in  a  single  suit.  This  morning, 
for  the  first  time,  my  door  opened  to  a  visitor,  an  old  lady,  who 
called  upon  me — she  being  the  widow  of  a  Revolutionary  hero— for 
the  purpose  of  receiving  instruction  as  to  the  measures  necessary  to 
be  adopted  in  order  to  procure  a  pension  or  bounty  from  the  United 
States.  If  she  had  asked  me  the  readiest  cut  to  the  moon,  I  should 
not  have  been  more  confounded.  I  had  no  book  at  hand  that  con. 
tained  the  necessary  information,  and  I  should  have  been  ashamed 
to  turn  to  it,  if  I  had.  I  faltered  and  floundered  for  some  time, 
but  the  question  was  too  direct  to  be  evaded,  and  I  waited  upon  her 
to  the  door,  while  I  honestly  confessed — what  she  must  previously 
have  discovered — that  I  really  did  not  know.'  'Now,  sir,'  said  he, 
in  a  tone  of  mingled  mirth  and  sadness,  'what  right  have  I  to  com- 
plain? the  moment  I  shall  be  satisfied  that  I  am  a  thorough-paced 
lawyer,  ripe  and  ready  for  every  ordinary  inquiry,  I  shall  feel  my- 
self authorized  to  pass  my  maledictions  upon  the  blindness  and  stu- 
pidity of  the  world,  by  which  my  attainments  are  treated  with 
unmerited  contempt !  But  not  now — not  now; — heaven  forbid  ! 
The  old  lady  has  satisfied  me  that  the  fault  is  in  myself.'  Notwith- 
standing these  were  no  laughing  matters,  my  risibles  were  not  a  little 
provoked  by  this  occurrence,  and  my  despondency — such  is  our 
nature — somewhat  alleviated  by  the  equality  of  our  conditions.  We 
parted — both  in  a  better  humor  than  when  we  met — and  I  also 
VOL.  I. — 4 


BIOGRAPHICAL    MEMOIR. 

came  to  the  conclusion,  that  it  was  quite  as  probable  that  I  was  not 
right,  as  that  the  world  was  entirely  wrong.  Acting  under  the 
influence  of  this  idea,  I  determined  to  appear  again  in  the  busy 
haunts  of  life — from  which  I  had  long  been  closely  secluded — to 
betake  myself  to  the  courts,  where  I  was  an  entire  stranger;  and  in 
short,  to  find  out  from  ocular  proof,  how  it  was  possible  that  'the 
great  globe'  should  move,  without  apparently  the  slightest  con- 
sciousness of  the  loss  which  it  sustained  in  my  person  and  endow- 
ments. 

"  One  day,  shortly  after  arriving  at  this  determination,  passing 
through  the  avenue  between  the  courts,  my  attention  was  attracted 
by  a  crowd  assembled  on  the  steps,  where  an  old  woman — for 
women,  it  would  seem,  are  ever  connected  with  the  greatest  good 
and  evil  in  life — with  a  sort  of  inspired  phrenzy,  like  that  of  Norna, 
of  the  Fitful  Head,  was  haranguing  the  wondering,  gaping  multi- 
tude, upon  the  cruelty  and  barbarity  of  some  one,  whom  she  did 
not  very  clearly  designate.  This  arose,  perhaps,  either  from  her 
having  named  the  individual  before  my  arrival  on  the  margin  of  the 
assemblage,  or  from  her  resembling  some  orators,  who  think  it  quite 
enough  to  speak,  and  therefore  leave  you  to  find  their  subject  by 
your  learning.  Her  manner — and  in  this  also  she  was  governed  by 
high  authority — was  more  effective  and  intelligible  than  her  matter, 
and  directed  by  that,  I  was  induced  to  peer  more  closely  into  the 
crowd,  in  the  very  centre  of  which  I  at  last  discovered  a  sight  much 
more  than  sufficient,  to  excite  a  female  heart,  or  move  a  female 
tongue. 

"In  the  very  centre  of  this  crowd,  I  say,  stood,  or  rather  bent,  a 
little  girl,  whose  suffering,  it  seems,  formed  the  subject  of  the  philip- 
pic to  which  I  have  already  referred,  and  to  whom  the  aged  sybil 
ever  and  anon  pathetically  pointed.  She  appeared  to  be  about  eight 
or  nine  years  old,  wretchedly  attired,  the  back  part  of  her  dress  torn 
open,  and  her  body  exposed.  Gracious  heaven,  what  a  sight !  Her 
little  limbs  were  covered  with  welts  and  extravasated  blood — her 


BIOGRAPHICAL    MEMOIR. 


xliii 


eyes  were  streaming  with  tears,  and  her  youthful  heart  throbbed  as 
though  it  would  burst.  Who  could  behold  such  suffering  and  be 
silent  ?  I  ventured  to  inquire  to  what  this  shocking  spectacle  in  a 
civilized  community  was  attributable  ? — an  unlucky  question.  Atten- 
tion was  directed  immediately  to  me,  and  whether  there  was  any- 
thing professional  in  the  mode  of  inquiry,  or  whether  some  individual 
in  the  large  assemblage  knew  that  I  was  somehow  connected  with 
the  law,  I  know  not,  but  it  was  at  once  insisted  that  I  should  point 
out  the  road  to  redress.  Although  it  would  be  base  to  say  that  my 
feelings  were  not  deeply  enlisted,  the  idea  of  being  suddenly  thrust 
into  an  argument,  was  very  much  like  looking  a  lion  in  the  mouth ; 
and  I  really  think  I  would  rather  have  taken  a  beating,  equal  to  that 
of  the  little  sufferer,  than  to  have  been  called  upon  to  utter  those 
frightful,  those  appaling  words :  '  May  it  please  your  Honor.' 

"What could  be  done?  There  is  something  in  the  helplessness  of 
childhood,  that  appeals  most  strongly  to  the  heart.  I  was  not  a 
parent,  it  is  true,  but  nature  ever  prepares  us  for  those  affections 
which,  when  they  arrive,  are  the  most  despotic  and  resistless  in  their 
sway.  The  age — the  sex — the  tears — the  blood  of  the  sufferer, 
might  have  moved  a  savage — but,  added  to  all  these,  the  accounts 
of  her  inability  to  communicate  by  language  the  extent  of  her  cala- 
mity, rendered  it  doubly  impressive  and  affecting — what,  I  say,  could 
be  done  ?  Who  could  resist  such  an  appeal  ?  Even  if  the  nobler 
emotions  of  the  heart  could  have  listened  unmoved  to  her  untutored 
grief,  the  sense  of  shame  which  every  man  must  experience  in 
refusing  his  aid,  when  thus  strongly  and  publicly  appealed  to,  could 
not  be  overcome.  I  took  the  little  stranger  by  the  hand,  ushered 
her  into  the  office  of  the  chief  magistrate  of  the  city,  and  there 
endeavored — for  it  was  my  first  appearance,  as  well  as  her's,  before 
the  awful  face  of  justice — there  endeavored  so  to  collect  my  scat- 
tered thoughts,  as  to  present  something  like  a  connected  detail  of  the 
injuries  she  had  endured  at  the  hand  of  her  master.  It  seems  that 
the  child — a  matter  of  which  my  readers  have  not  been  apprised — 


BIOGRAPHICAL    MEMOIR. 

was  one  of  a  large  family  of  German  Kedemptioners,  as  they  are  usu- 
ally called,  recently  arrived  amongst  us.  She,  together  with  her  entire 
family,  had  been  sold  or  bound  to  different  individuals  throughout  the 
State,  for  a  certain  number  of  years,  for  the  purpose  of  discharging 
the  amount  of  their  passage  money.  Her  father  and  mother,  as  I 
succeeded  in  gathering,  were  purchased  by  some  gentlemen  in  the 
interior  of  the  State.  Her  brothers  and  sisters  had  also  been  pur- 
chased by  persons  far  removed  from  the  city,  and  she,  the  youngest 
of  the  little  flock,  cut  off  and  estranged  from  her  native  support,  fell 
into  the  hands  of  the  individual  whose  causeless  barbarity  was  the 
subject  of  complaint.  The  case  was  returned  to  court,  and  in  fearful 

suspense  I  awaited  the  trial. 

*  #  *  *  *  *  * 

"  My  fears,  however,  had  no  effect  other  than  to  lend  their  own 
wings  to  the  flight  of  time,  and  the  morning  of  the  eventful  day  of  trial 
arrived — the  day  that  was  to  decide  upon  my  destiny  forever.    How 
deceitful  is  this  world !    To  visit  our  temples  of  justice,  and  to  listen 
to  the  aspirants  for  fame — what  is  more  delightful,  what  is  more  fas- 
cinating?    What  a  sad  reverse,  however,  does  reflection  present, 
while  she  traces  them  step  by  step,  through  the  thorny  and  perplex- 
ing mazes  of  intricate  science — bartering  their  tranquil  slumbers  for 
the  illusions  of  fame ;  wasting  their  lives  frequently  in  unavailing 
efforts  to  enjoy  or  to  grasp  what  hope  had  so  long  promised,  until  at 
last  the  lights  of  life  and  hope  are  extinguished  together.     How 
dearly  purchased ;  and  alas  !  how  vain  are  the  charms  of  ambition ! 
"  What  a  miracle  is  the  mind  of  man !  shrinking  even  from  the 
thought  of  past  terrors.     At  this  day,  when  the  records  of  time  are 
impressed  upon  my  brow,  and  I  feel  his  icy  fingers  at  my  heart,  I 
can  hardly  bring  myself,  without  too  much  emotion,  to  review  the 
scene  of  my  earliest  professional  struggle.   Haggard  and  worn-out — 
not  with  preparing  for  my  cause,  but  with  thinking  of  it — on  the 
appointed  day,  not  induced  by  ambition  but  impelled  by  dread  of 
shame,  and  yet  hardly  certain  whether  the  greater  shame  pursued 


BIOGRAPHICAL    MEMOIR.  xlv 

or  awaited  me,  I  entered,  for  the  first  time  professionally,  the 
chambers  of  justice — the  chambers  of  death  would  not  have  been 
more  gloomy,  scarcely  less  welcome.  The  hall  was  crowded  to  the 
very  ceiling,  either  actually  or  by  my  peopled  imagination.  Yet  I 
saw  nothing  distinctly)  there  was  a  general  buzz — not  of  applause — 
but,  as  it  seemed  to  me,  of  consternation,  at  seeing  the  approach  of 
counsel  and  client ;  the  former,  if  possible,  evidently  more  terrified 
than  the  latter.  I  sat  down  beside  the  complainant,  scarcely  know- 
ing how;  got  up  without  knowing  why,  and,  in  the  very  endeavor  to 
appear  composed,  must  have  satisfied  every  practiced  observer,  that 
composure  was  no  inmate  of  my  distracted  mind.  When  sufficiently 
collected  to  embody  the  shadowy  forms  around  me,  I  perceived, 
seated  immediately  opposite  to  me,  the  defendant  and  his  counsel — 
two  experienced  and  distinguished  members  of  the  profession,  men 
who  had  been  accustomed  to  sway  the  sceptre  of  the  mind  with 
kingly  hand,  not  only  composed,  but  eager  for  the  encounter.  When 
I  saw  this,  strange  as  it  may  seem,  I  confess  I  felt  relieved — there 
was  something,  it  seemed  to  me,  like  a  contemptuous  smile  playing 
around  the  lips  of  the  gentlemen,  and  I  felt  for  a  moment  as  though 
my  soul  was  in  arms ;  it  was  but  for  a  moment — the  feverish  excite- 
ment subsided,  and  left  me,  if  possible,  more  languid  than  before. 
The  case  was  called — the  jury  sworn — when,  as  if  I  were  doomed 
to  be  tested  by  every  affliction,  the  attorney-general,  a  gentleman  of 
distinction  in  the  profession,  though  but  little  older  than  myself,  pri- 
vately stated  to  me  that  it  was  not  his  design  to  assist  in  the 
prosecution,  but  that  having  opened  the  cause,  it  would  be  left 
entirely  to  my  management.  Ambition,  pride,  shame,  had  alter- 
nately ruled  in  my  bosom;  their  voice,  though  heard  for  the  time, 
was  soon  lost  in  the  tumultuous  clamor  of  fear  that  pervaded  their 
kingdom.  This,  however,  was  the  last  blow,  and  the  result  was 
despair — deep,  unalloyed,  unmitigated,  unresisted.  From  that  mo- 
ment my  whole  character  was  changed,  and  'every  petty  artery  in 
the  body  swelled  with  a  giant's  strength.'  I  had  often  heard  of  the 


BIOGRAPHICAL    MEMOIR. 

stillness  and  calmness  of  despair,  but  never  felt  it  before  or  since. 
How  salutary  a  lesson  did  I  derive  from  the  sufferings  of  the  occa- 
sion !  How  intense  is  the  commiseration  I  feel  upon  the  professional 
debut  of  one  of  my  young  friends !  and  although  it  rarely  happens 
to  them,  to  make  their  first  appearance,  or  launch  their  little  bark 
upon  so  stormy  a  sea  as  that  by  which  mine  was  tossed,  neverthe- 
less, to  a  sensitive  mind,  the  first  public  essay,  whatever  may  be  its 
character,  and  whatever  its  occasion,  is  attended  by  the  most  horri- 
ble anxieties,  and  perhaps  it  is  necessary  that  it  should  be  so.  He 
who  commences  his  career  with  composure,  wfll  prosecute  it  with  in- 
difference, and  terminate  it  in  disgust.  I  acquit  the  gentlemen 
opposed  to  me  of  any  design  to  increase  my  difficulties.  Scarcely, 
however,  had  the  case  been  opened,  when  it  was  suggested  that  the 
defendant  had  the  right  to  insist  upon  the  indorsement  of  the  name 
of  the  prosecutor,  and  some  authorities  were  referred  to  in  support 
of  the  privilege.  Those  who  were  friends  before,  seemed  to  shrink 
from  responsibility.  I  had  no  authorities  to  oppose  them ;  my  scanty 
supply  of  legal  lore  hardly  furnished  me  with  the  definition  of  the 
offence  about  to  be  tried,  much  less  with  that  practical  knowledge, 
without  which  the  acquisition  of  legal  principles  becomes  rather  an 
incumbrance  than  an  assistance.  I  simply  suggested  to  the  court, 
that  the  application  appeared  to  me  to  be  too  late,  after  the  jury  had 
been  sworn ;  that  the  jury  might  themselves  afford  to  the  defendant 
all  the  advantages  to  which  he  was  entitled,  by  finding  the  prosecu- 
tor in  the  verdict ;  but  if  neither  of  these  grounds  was  considered 
sufficient  by  the  court,  I  begged,  in  behalf  of  a  friendless  child,  to 
be  allowed  the  honor  of  recording  my  own  name  as  the  prosecutor, 
and  thereby  at  once  removing  all  preliminary  questions  upon  our 
right  to  proceed.  This  was  partly  sincere,  no  doubt,  but  I  dare  say 
it  was  chiefly  attributable  to  my  having,  at  the  time,  more  ready 
money,  than  ready  reason.  The  court,  fortunately  for  us,  adopted 
the  ground  first  suggested,  refused  to  direct  the  name  of  the  prose- 
cutor to  be  indorsed,  and  the  cause  was  accordingly  ordered  to  pro- 


BIOGRAPHICAL    MEMOIR. 

ceed.  The  counsel  for  the  defendant  then  publicly  called  upon  the 
attorney-general  to  adopt  or  reject  the  case  as  a  public  prosecution. 
With  a  magnanimity  for  which  he  deserved,  and  received  credit,  he 
stated  that  although  disposed  to  leave  the  matter  entirely  to  me,  he 
did  not  think  his  official  duty  would  justify  him  in  throwing  reproach 
upon  a  case,  founded,  apparently,  in  a  desire  of  public  justice,  by 
declaring  it  unworthy  of  public  support;  and  that  if  it  were  insisted 
upon  that  he  should  either  repudiate  or  assist  in,  the  prosecution, 
he  would  elect  the  latter,  which  he  accordingly  did,  very  much  to 
my  gratification  and  the  benefit  of  my  client,  and  unquestionably 
to  his  own  honor. 

"  The  cause  then  proceeded.  The  facts  already  adverted  to, 
were  distinctly  proved.  The  defendant  chiefly  relied  for  his  acquit- 
tal upon  his  general  character,  which  was  irreproachable  —  upon 
alleged  misconduct  of  the  child,  and  particularly  that  she  had, 
upon  one  occasion,  been  found  in  possession  of  a  small  sum  of 
money,  which,  she  said,  had  been  given  to  her  by  the  defendant's 
brother,  and  which  the  brother  denied.  The  cause  lasted  nearly 
four  days,  the  excitement  daily  increasing,  until  at  length,  the 
period  arrived,  when  it  became  my  duty  to  address  the  court  and 


"  Terrified  and  trembling  I  arose.  The  temporary  agitation  of 
the  multitude,  and  then  the  dead  silence  that  succeeded  —  the  ima- 
ginary importance  of  a  first  effort  —  its  probable  effect  upon  my 
future  life  —  but  above  all,  the  desire  to  vindicate  the  principles  of 
humanity,  which  had  been  outraged,  all  contributed,  by  their 
claims  upon  my  exertion,  to  impair  those  feeble  talents  which  might 
have  been  effectually  exercised,  if  less  powerfully  put  into  requi- 
sition. 

"As  though  seeking  consolation  from  every  quarter,  and  anxious 
to  conciliate  the  opinion  of  my  opponents,  the  moment  before  com- 
mencing my  speech,  I  turned  to  one  of  my  antagonists  and  said, 
'  This  is  awful  ;  it  is  very  much  like  facing  a  full-mouthed  battery,' 


xlviii  BIOGRAPHICAL    MEMOIR. 

in  the  expectation  that  he  would  cheer  me  by  the  reply,  that  my 
fears  were  imaginary — a  few  words,  and  I  should  be  relieved  from 
anxiety,  or  something  to  that  amount.  But,  on  the  contrary,  my 
anxiety  was  redoubled  by  his  remark,  that  it  was  truly  a  great  day 
for  me,  as  I  should  probably  date  my  rise  or  ruin  from  it.  All 
further  intermission  was  here  luckily  cut  short  by  a  direction  from 
the  court  to  commence  the  discussion,  and  I  began.  For  some 
minutes  I  remembered  nothing,  with  the  exception  of  one  circum- 
stance, which  showed  that  I  was  not  entirely  deprived  of  conscious- 
ness. Having,  while  speaking,  thrown  out  my  hand,  I  was  shocked 
to  perceive  that  it  trembled  like  an  aspen  leaf,  and  immediately 
withdrew  it  until  the  acquisition  of  greater  courage  should  render 
it  more  confident  in  the  cause.  When  I  once  got  fairly  started,  the 
reaction  of  nature  upon  the  system  was  most  powerful.  The  excite- 
ment into  which  I  was  wrought,  presented  too,  most  boldly  to  my 
mind,  all  that  I  ever  read  or  knew.  The  audience,  bore  away  by 
the  occasion,  and  only  requiring  that  the  prominent  features  of  it 
should  be  discreetly  exhibited  to  them,  broke  in  upon  my  speech 
with  loud  and  long-continued  applause ;  and  after  haranguing  the 
public  rather  than  the  jury  for  about  three  hours,  I  sat  down 
amidst  the  most  tumultuous  acclamations  that  ever  disturbed  the 
serenity,  or  shocked  the  dignity  of  a  court  of  justice.  The  whole 
effect  of  the  speech  was  dramatic.  The  introduction  of  the  child, 
whom  I  apostrophized  in  the  course  of  my  tirade,  was  electrical ; 
the  entire  assemblage  melted  into  tears;  in  short,  rage,  indignation, 
sorrow  and  compassion  ruled  the  tumultuous  throng  by  turns.  My 
antagonists  followed.  They  managed  their  cause  with  infinite 
address  and  ability;  but  in  such  a  case,  and  with  such  an  audience, 
it  was  not  in  the  power  of  man  to  succeed.  The  case  was  closed 
by  the  attorney-general  with  great  force  and  pathos,  and  the  defend- 
ant was  convicted. 

"  This  may  be  said  to  be  a  strange  world — there  is  nothing  in 
romance  equal  to  the  realities  of  life.     My  office,  which,  as  I  have 


BIOGRAPHICAL    MEMOIR.  xjjx 

said,  before  that  time  was  deserted,  now,  by  this  sudden  and  unex- 
pected chance,  became  thronged  with  clients,  anxious  to  unload  their 
griefs  and  their  pockets.  My  seclusion  and  tranquility  were  forever 
exchanged  for  public  display  and  ever-changing  scenes  of  noise  and 
strife.  With  all  the  delight  attending  upon  flattering  hopes,  is  there 
not  room  to  doubt  here,  whether  the  change,  favorable  as  it  appeared, 
really  contributed  to  increase  the  actual  balance  of  human  happi-* 
ness  ?  My  means,  it  is  true,  were  extended,  but  my  expenses  were 
necessarily  much  increased.  My  pleasures  were  of  a  more  positive 
character,  but  so  were  my  pains.  Daily  I  inhaled  the  buoyant  gale 
of  popular  favor,  but  I  was  also  daily  subjected  to  perils  and  pen- 
alties which  nothing  but  untiring  ambition  could  endure.  I  am 
even  surprised,  that  I  should  ever  have  rejoiced  at  a  change  which 
condemned  me  to  unremitting  and  interminable  toil ;  and  with  the 
characteristic  capriciousness  of  man,  I  look  with  anxious  and  desiring 
eyes  upon  the  retirement  and  solitude  which  at  iliat  time  was  as 
much  abhorred,  as  it  is  coveted  at  t/tis" 

In  1819,  Mr.  Brown,  then  about  twenty-four  years 
of  age,  was  honored  by  the  Washington  Benevolent 
Society  with  the  appointment  of  Orator,  to  deliver  the 
Annual  discourse  upon  the  birth-day  of  the  Father  of 
his  country.  This  duty  was  performed  at  the  Hall, 
with  an  audience  of  more  than  five  thousand  persons ; 
and  without  the  aid  of  any  manuscript.  When  it  is 
remembered  that  this  high  post  had  previously  been 
conferred  upon  such  men  as  Judge  Hopkinson,  Mr. 
Ingersoll  and  Mr.  Chauncey,  veterans  at  the  bar,  the 
distinction  will  not  be  deemed  inconsiderable,  or  unwor- 
thy of  notice.  From  year  to  year,  popular  favor 


I  BIOGRAPHICAL    MEMOIR. 

seemed  to  accumulate  upon  the  subject  of  this  memoir; 
shortly  after,  he  was  engaged  in  some  of  the  most 
•exciting  of  the  Roman  Catholic  disputes,  (arising  out 
of  dissensions  between  the  body  of  the  clergy  and  the 
late  Mr.  Hogan,)  which  difficulties  agitated  the  city 
for  several  years,  and  employed  some  of  the  first  tal- 
ents in  the  country.  In  1822,  he  conducted  the  prose- 
cution against  Boyer,  Seitzinger  and  others,  before  the 
Court  of  Quarter  Sessions  in  Berks  county,  of  which 
the  Hon.  R.  Porter,  was  president.  The  case  was  one 
of  great  importance,  arising  out  of  an  extensive  con- 
spiracy to  defraud  the  merchants  of  Philadelphia. 
The  trial  occupied  upwards  of  ten  days,  and  the  de- 
fendants were  represented  by  some  of  the  ablest  men 
in  the  State — Marks  John  Biddle,  Charles  Evans, 
James  Buchanan,  Samuel  Baird,  and  several  others, 
all  of  whom  exhibited  great  zeal  and  consummate 
skill.  Mr.  Brown  was  at  this  period  but  twenty-six 
years  of  age,  and  it  is  sufficient  to  say  of  him,  that  he 
maintained  his  composure  and  his  ground,  against  such 
fearful  odds. 

In  1824,  Mr.  Brown  was  engaged  by  the  Honorable 
Robert  Porter,  President  Judge  of  the  Common  Pleas, 
in  his  defence  upon  an  impeachment  before  the  Senate 
of  Pennsylvania,  which  impeachment  partly  arose  out 
of  the  trial  for  conspiracy  just  referred  to.  Upon  the 
trial,  Mr.  Brown  was  the  only  counsel  for  the  respond- 
ent ;  and  in  defiance  of  a  powerful  opposition  by  the 


BIOGRAPHICAL    MEMOIR,  \{ 

attorney-general  and  the  committee  of  the  Lower 
House,  succeeded,  after  a  laborious  trial  of  several 
weeks,  in  a  most  honorable  acquittal  of  his  client. 
The  difficulties  encountered  by  him  upon  this  occasion, 
considering  his  youth,  were  such  as  are  rarely  under- 
gone; and  no  young  lawyer  can  fail  to  sympathize 
with  him,  while  perusing  the  folloAving  anecdote,  which 
we  have  heard  related  by  himself,  and  almost  in  the 
very  words : 

"On  the  fourteenth  day  of  the  trial,  the  evidence  being  closed, 
the  attorney-general  summed  up  his  case,  and  finished  about  the 
usual  hour  of  the  evening  adjournment.  I  was  to  follow  the  next 
morning  for  the  defendant.  I,  of  course,  returned  to  my  lodgings, 
brim-full  of  anxiety,  and  as  is  my  wont,  expecting  a  night  of  labo- 
rious examination  and  study.  It  has  been  my  habit,  always  to  re- 
serve my  main  preparation  until  after  the  evidence  has  terminated 
— but,  in  the  present  instance,  that  delay  was  rendered  inevitable 
from  the  pressure  of  the  trial,  and  protracted  sessions  of  the  Senate. 
After  taking  my  dish  of  tea,  I  locked  my  chamber  door,  drew 
the  strings  of  my  satchel,  and  pulled  out,  as  I  thought,  the  recorded 
labors  of  the  last  fortnight.  But  to  my  astonishment,  the  bag  only 
contained  the  journal  of  both  Houses — not  a  particle  of  my  notes, 
the  charges,  or  the  evidence.  I  confess  this  appalled  me — it  was 
now  ten  o'clock  at  night,  and  with  all  appliances  and  means  to 
boot,  I  had  no  time  to  spare.  I  immediately  rushed  to  the  Senate 
chamber,  opened  my  desk  in  search  of  my  notes,  but  it  was  empty. 
I  next  hastened  to  Judge  Porter's  lodgings,  but  he  knew  nothing  of 
the  stray  papers.  Finally,  I  turned  my  disconsolate  steps  again 
towards  my  own  apartments,  and  I  confess  I  think  would  have 
been  happy  if  any  one  had  blown  my  brains  out  on  the  road.  The 


•fa  BIOGRAPHICAL    MEMOIR. 

reflection,  or  rather  the  visions  that  passed  through  my  mind,  were 
of  the  most  painful  and  distressing  character.  I  felt  as  if  all  my 
past  life  was  to  go  for  nothing;  as  if  this  was  the  crisis  of  my 
fate.  To  appear  before  the  representatives  of  the  entire  State — 
heralded  by  proud  anticipations,  and  break  down  in  the  very  centre 
of  a  vast  community,  'where  either  I  must  live  or  have  no  life,' 
was  certainly  enough.  But  there  were  matters  beyond  these.  The 
respondent,  a  man  of  high  character  and  fortune,  and  with  an 
interesting,  large,  sympathetic  family,  was  to  be  utterly  ruined  in 
his  fame  and  prospects,  by  confiding  his  defence  to  a  thoughtless 
and  improvident  young  man,  who  had  not  only  neglected  the  reason- 
able preparation  of  the  case,  but  had  actually  lost  the  documents, 
and  the  evidence,  so  vital  to  the  defence. 

"  As  to  asking  the  Senate  to  extend  any  indulgence  in  the  way  of 
a  postponement  of  the  argument,  that  was  out  of  the  question. 
What  then  was  to  be  done  ?  The  die  seemed  to  be  cast,  and  my 
very  apprehensions  served  only  to  redouble  the  difficulties,  to  which 
I  was  actually  subjected.  There  is  a  courage,  however,  in  despair, 
that  nothing  else  can  match.  I  felt  like  the  leader  of  a  forlorn 
hope,  who,  in  the  extremity  of  danger,  loses  even  the  sense  of  fear. 
I  remember  it  as  if  it  were  yesterday.  I  entered  my  wretched 
study,  which  I  had  prepared  for  a  night  of  toil,  blew  out  the  lights, 
and  attired  as  I  was,  sprang  into  my  hapless  bed,  to  pass  a  fever- 
ish, a  sleepless,  and  a  restless  night.  Itjuras  the  only  night's  rest  I 
ever  lost;  yet,  in  its  influence  upon  my  professional  character,  it 
was  the  best  night  of  my  life.  With  closed  eyes,  and  a  perfect 
concentration  of  all  the  faculties  of  my  mind,  I  reviewed,  in  their 
order,  the  occurrences  of  the  trial,  so  far  as  they  were  essential  to 
the  defence;  an  immense  effort  of  memory,  the  greater  for  my 
having  at  all  relied  upon  the  notes,  in  the  progress  of  the  cause. 
The  charges  were  fourteen  in  number;  I  began  of  course  with 
those.  I  then  turned  my  mind  to  the  answers  to  the  specifications, 
by  which  I  arrived  at  the  exact  points  in  issue,  either  in  fact  or  in 


BIOGRAPHICAL    MEMOIR.  Jjjj 

law.  I  next  passed  to  the  names  of  the  different  witnesses,  amount- 
ing to  one  hundred  and  fifteen,  examined  on  the  part  of  the  State, 
and  the  defendant;  I  then  recalled  the  respective  testimony  upon 
the  different  accusations;  the  discrepancies,  contradictions,  motives, 
the  means  of  knowledge,  and  the  respective  weight  of  the  witnesses, 
in  regard  to  the  points  in  controversy.  This  was  followed  by  a  dis- 
cussion of  the  legal  principles,  applicable  to  the  relative  condition  of 
the  prosecution  and  defence.  And  lastly,  I  reviewed  the  public 
services  of  the  respondent  from  the  time  he  was  an  officer  in  the 
Revolution,  at  the  age  of  eighteen  years,  down  to  the  moment  of 
the  present  trial.  I  had  barely  reached  thus  far,  when  the  bell  of 
the  Capitol  sounded,  and  I  was  summoned,  half  dead,  to  my  argu- 
ment. At  all  events,  I  didn't  require  to  dress,  and  I  was  quite 
ready,  if  not  entirely  prepared.  As  I  walked  up  the  middle  aisle 
or  avenue  to  commence  my  argument,  my  client,  who,  with  all  his 
merits,  was  the  most  absent  man  in  the  world,  hastily  approached, 
and  said,  '  My  dear  friend,  I  have  found  your  papers,  having  locked 
them  up  safely  in  my  desk.'  I  had  merely  time  to  say,  with  some 
impatience  I  fear,  'It  is  of  no  consequence  now;'  and  the  argument, 
which  occupied  the  entire  morning,  at  once  proceeded,  and  on  the 
next  day,  eventuated,  as  has  been  said,  in  the  honorable  acquittal  of 
the  defendant. 

"  I  refer  to  this,  not  simply  for  the  story,  but  for  its  moral ;  for 
the  encouragement  which  it  is  calculated  to  impart  to  the  youthful 
advocate  in  similar  circumstances.  Depend  upon  it,  what  must  be 
done,  can  be  done.  '  The  gods  are  ever  with  the  brave.'  To  be 
resolved  is  every  thing. 

"All  the  composure  that  I  have  ever  since  enjoyed  in  the  most 
anxious  struggles,  has  been  readily  traced  to  the  early  events  which 
I  have  thus  described.  No  circumstances  could  be  more  unfavor- 
able ;  and  therefore,  having  encountered  the  greater  evil,  I  am  not 
to  be  taken  by  surprise,  but  feel  ready  to  combat  with  the  less.  A 


Uv  BIOGRAPHICAL    MEMOIR. 

rough  youth  makes  a  calm  old  age.     Adversity  is  a  severe  teacher, 
but  its  lessons  are  rarely  forgotten." 


During  the  pendency  of  this  very  important  case, 
Mr.  Brown  became  engaged  to  Emmeline  Catharine 
Handy,  the  accomplished  and  only  daughter  of  Sewell 
Handy,  late  of  the  United  States  Navy,  and  grand- 
daughter of  James  Hutchins,  Esq.,  of  the  Eastern 
Shore  of  Maryland. 

This  marriage  took  place  at  Philadelphia,  on  Christ- 
mas eve,  in  the  year  eighteen  hundred  and  twenty-six, 
and  has  been  blessed  with  the  birth  of  five  sons  and 
two  daughters,  all  of  whom  are  still  living. 

The  new  relation  into  which  he  had  entered  was,  of 
course,  an  additional  incentive  to  professional  exertion. 
Still,  although  business  increased,  his  labors  were  ren- 
dered comparatively  light,  from  having  become  habitu- 
ally familiar.  In  his  own  language,  "  he  could  now 
sleep  upon  his  laurels,"  or  make  speeches  with  impu- 
nity, which  would  have  ruined  him  if  he  had  been  ten 
years  younger.  Such  was  his  just  estimate  of  the 
patronage  and  judgment  of  the  world.  The  trial  lists 
of  the  courts  will  show,  that  for  years  his  business 
took  a  conspicuous  part,  in  the  number  of  cases 
brought  in  the  civil  courts  ;  and  when  it  is  remem- 
bered that  his  engagements  were  of  the  most  varied 
character  —  that  he  was  a  leader,  too,  in  the  heavier 
business  of  criminal  proceedings,  and  was  not  unfre- 


BIOGRAPHICAL    MEMOIR.  Jv 

quently  employed  in  four  other  States  of  the  Union ; 
it  may  well  be  believed  that  the  duties  of  his  profes- 
sion afforded  him  but  little  time  for  relaxation.  When 
upon  one  occasion  a  friend  kindly  inquired,  "  How  is 
it  possible  that  you  can  do  so  much  business  ?"  he 
simply  answered,  "Because  I  have  got  so  much  to  do." 
"  But,"  rejoined  the  other,  "  How  can  you  indulge  in 
poetry  and  general  literature?"  "Because,"  replied 
he,  "  it  enables  me  to  return  to  my  more  rugged  pur- 
suits with  greater  alacrity  and  renewed  strength.  The 
mind  takes  its  direction  from  habit ;  if  you  wish  to 
strengthen  it,  you  must  direct  it,  for  a  time,  into  other 
channels,  and  thereby  refresh  and  improve  it.  A  mere 
lawyer  is  a  mere  jackass,  and  has  never  the  power  to 
unload  himself;  whereas  I  consider  the  advocate — the 
thoroughly  accomplished  advocate — the  highest  style 
of  man.  He  is  always  ready  to  learn,  and  always 
able  to  teach.  Hortensius  was  a  lawyer — Cicero  an 
orator,  the  one  is  forgotten,  the  other  immortalized." 

Shortly  after  his  marriage,  Mr.  Brown  was  engaged 
with  Mr.  Binney,  and  the  elder  Mr.  RawTle  (his  pre- 
ceptor,) in  the  Circuit  Court  of  the  United  States,  in 
the  highly  important  case  of  Snyder  v.  Zelin,  involving 
the  chief  part  of  the  estate  of  the  late  Governor  Sny- 
der. It  was  an  ejectment  to  recover  Zelin's  Grove. 
Mr.  Bellas,  Mr.  Kittera,  and  Mr.  Chauncey,  were  the 
counsel  for  the  defendant.  This  case  is  introduced 
partly  to  show  the  promptitude  of  Mr.  Brown  in 


an  emergency,  and  partly  to  exhibit  the  perils  of 
printing. 

As  the  junior  counsel,  Mr.  B.,  of  course,  opened  the 
case  for  the  plaintiff.  When  he  commenced,  the  wit- 
nesses to  prove  the  fact  of  possession,  were  all  in 
court;  but  when  the  opening  was  finished,  and  the 
witnesses  were  called,  they  had  all  in  some  mysterious 
manner  disappeared.  The  matter  was  stated  to  the 
court,  but  after  waiting  a  few  minutes,  Judge  Wash- 
ington ordered  the  case  to  proceed.  "Well,  then," 
said  Mr.  B.,  "  I  will  call  Mr.  Bellas,  one  of  the  defend- 
ant's counsel,  who  resides  near  Zelin's  Grove."  "  I 
decline  being  examined,"  said  Mr.  Bellas,  "being  coun- 
sel, I  cannot  be  asked  to  betray  the  confidence  reposed 
in  me."  "  But,"  said  the  Judge,  "  you  are  compelled, 
notwithstanding,  to  state  your  knowledge  of  a  fact 
which  is  supposed  to  have  been  known  to  you,  inde- 
pendently of  your  employment."  He  was  therefore 
examined,  and  the  object  accomplished.  The  peril  of 
printing  was  this : 

During  the  trial  just  mentioned,  which  was  a  pro- 
tracted one,  Mr.  James  Madison  Porter  (afterwards 
Secretary  of  War,  wrho  was  a  brother  of  Judge  Porter,) 
had  procured  the  proceedings  and  arguments  upon  the 
impeachment,  to  be  published,  and  he  forwarded  the 
proof-sheet  to  Mr.  B.,  while  immersed  in  the  difficulties 
of  the  trial,  in  the  Circuit  Court.  Mr.  B.  had  merely 
time  hastily  to  glance  over  his  speech,  strike  out  some 


BIOGRAPHICAL    MEMOIR. 

of  the  objectionable  parts,  by  passing  his  pen  through 
them,  and  return  the  proof  forthwith.  But  upon  the 
publication  of  the  book,  what  was  his  surprise  to  find 
that  the  stupid  printer,  instead  of  omitting  the  objec- 
tionable passages,  probably  supposing  they  were  in- 
tended to  be  underscored,  had  printed  them  all  in 
italics,  thereby  inviting  attention  especially  to  the 
most  offensive  parts  of  the  argument.  If  the  speech 
was  ruined,  the  joke  at  least  remained ;  and  we  have 
often  heard  the  victim  say,  that  he  would  not  give 
much  for  any  man's  literary  or  professional  reputation, 
that  a  printer's  blunder  could  demolish. 

Shortly  after   this   he   reviewed,   for   Mr,  Walsh, 

v  '7 

"Joanna  Baillie's  Poetical  and  Dramatic  Produc- 
tions ;"  Colonel  Hamilton's  work  upon  the  "  Men  and 
Manners  of  America;"  and  Lord  Brougham's  Speech 
upon  the  "Reform  of  the  British  Laws."  In  the  year 
1830,  he  wrote  "  Sertorius,  or  the  Roman  Patriot," 
a  tragedy;  and  the  "Prophet  of  St.  Paul's,"  a  melo- 
drama, which  were  followed  by  the  "  Trial,"  another 
tragedy ;  and  a  farce,  called  "  Love  and  Honor,  or  the 
Generous  Soldier;"  the  first  two  of  which  were  per- 
formed and  published,  and,  if  we  remember  rightly, 
reviewed  by  Mr.  Paulding,  Secretary  of  the  Navy,  in 
"Walsh's  American  Quarterly  Review."  Well  may 
we  admire,  says  an  author  of  considerable  distinction, 
speaking  in  regard  to  these  literary  labors,  that  a 
lawyer,  overwhelmed  with  an  infinite  variety  of  busi- 
VOL.  i. — 5 


BIOGRAPHICAL    MEMOIR. 

ness,  whose  ante-room  resembles  that  of  Charles  the 
Bold,  should  recreate  his  harassed  and  exhausted 
faculties,  even  amidst  the  passion,  invective,  and  noise 
of  litigation,  with  the  beautiful  dreams  of  poetry.  He 
well  knew  that  the  purest  and  loftiest  intellect  is  least 
esteemed  among  us ;  else  why  are  the  authors  of  "  Pro- 
metheus" and  "  Hadad"  thrown  backward  into  darkness, 
while  the  tamest  mediocrity  often  triumphs  over  the 
genius  which  scorns  all  subterfuge  and  notoriety.  But 
Mr.  Brown  recks  not  of  these  things.  Amidst  the 
severe  toils  and  agitations  of  his  profession,  he  sum- 
mons around  him  the  lovely  castalides — breathes  in 
the  thick  atmosphere  of  a  court,  the  pure  air  of  Par- 
nassus ;  and  retires  with  a  serene  spirit  from  the  fury 
of  forensic  contention,  to  celebrate  his  competalia 
among  the  shadowy  and  beautiful  beings  of  the  mind. 
We  delight  to  behold  such  a  mind ;  it  soars  beyond  the 
indurating  influences,  the  scepticism,  the  worldliness, 
which  the  law  too  often  engenders,  and  clothes  even 
the  bitter  animosities  of  men  with  the  light  of  a  hu- 
manizing and  exalted  spirit.  Mr.  Brown  most  amply 
merits  the  reputation  he  enjoys  in  jurisprudence,  and 
if  his  fame  is  not  surpassed  by  his  literary  renown,  it 
will  be  solely  because  letters  are  to  him,  not  a  profes- 
sion, but  an  enjoyment;  not  an  aspiration  after  immor- 
tality, but  a  recreation  and  solace  in  his  hours  of 
abstraction  from  the  more  severe  conflicts  of  the  mind. 
In  a  work  upon  the  "Dramatic  Authors  of  Ame- 


.BIOGRAPHICAL    MEMOIR.  ftx 

rica,"  by  James  Reese,  Esq.,  published  in  1845,  there 
is  also  a  notice  of  some  of  these  plays,  together  with 
a  professional  anecdote,  that  may  not  be  unworthy  of 
insertion  in  this  hasty  and  imperfect  sketch.  It  is 
written  by  a  comparative  stranger,  and  is,  perhaps, 
the  more  valuable  or  impartial  on  that  account ;  at  all 
events,  it  will  form  one  of  the  links  in  the  chronologi- 
cal chain  of  Mr.  Brown's  career. 

David  Paul  Brotvn,  " Sertorius"  "Prophet  of  St. 
Paul's"  The  first  of  these  was  printed  in  1830,  and 
acted  by  Mr.  Booth,  in  his  palmy  days,  with  great 
success.  It  possesses  considerable  merit,  and  has 
nobly  withstood  the  test  of  severe  criticism.  The 
latter  has  been  played  thrice,  but  not  with  the  same 
success.  "  The  Prophet  of  St.  Paul's,"  like  the  dra- 
matic productions  of  Byron,  is  better  calculated  for 
the  closet  than  the  stage ;  it  is  obviously  not  intended 
for  representation.  A  critic  of  the  period  alluded  to, 
speaks  of  the  author  thus  : 

"  Mr.  Brown's  poetry  is  generally  smooth  and  harmonious.  Be- 
sides a  familiar  acquaintance  with  the  best  models,  he  has  a  delicate 
ear,  nicely  alive  to  discord ;  and  he  reads  with  a  correctness  which 
would  be  likely,  if  applied  as  a  test,  to  prevent  all  harshness  of 
rhythmical  construction.  In  '  Sertorius,'  it  would  be  difficult  to  find 
a  single  jarring  line.  Mr.  Brown  is  one  of  our  most  popular  law- 
yers. He  possesses,  in  an  eminent  degree,  those  qualities  which 
acquire  and  secure  favor.  His  manners  are  frank  and  courteous, 
his  conversation  is  sparkling  and  vivacious,  and  his  temper  is  amiable 
and  benevolent. 


lx  BIOGRAPHICAL    MEMOIR. 

"As  an  advocate,  he  has  few  superiors.  He  enters  thoroughly 
into  his  case — identifies  himself  with  his  client — and  his  warmth  and 
energy  always  secure  attention,  and  awaken  interest,  even  when  they 
fail  to  produce  conviction.  His  declamation  is  bold  and  impas- 
sioned j  his  diction  uncommonly  free  and  felicitous,  and  he  possesses 
a  readiness,  self-command  and  tact,  which  never  forsake  him.  It  is 
not  surprising,  then,  that  his  clients  should  be  numerous,  and  his 
business  extensive ;  and  hence  it  has  happened,  to  use  the  language 
employed  in  his  simple,  but  sincere  dedication,  that  his  '  dramatic 
sketch'  was  hastily  '  drawn  in  the  scanty  intervals  afforded  by  an 
arduous  profession.' 

"  A  general  criticism  upon  the  literary  merits  of  any  native  pro- 
duction, would  be  foreign  from  our  purpose.  In  accordance,  how- 
ever, with  the  plan  laid  down,  we  give  extracts  whenever  the  oppor- 
tunity offers,  with  such  remarks  as  have  appeared  on  or  about  the 
time  of  the  representation  of  the  pieces.  We  wrote  to  David  Paul 
Brown,  Esq.,  for  copies  of  his  plays,  that  we  might  make  such 
extracts  as  would  tend  to  give  our  readers  some  idea  of  their  lite- 
rary merit.  We  cannot  resist  the  temptation  of  pubh'shing  the  fol- 
lowing letter  from  this  admirable  dramatic  writer;  it  is  written  in 
his  usual  style  of  excellence,  and  when  we  add,  that  we  have  no 
personal  acquaintance  with  him,  his  open,  candid,  and  familiar  style 
will  convey  to  our  readers  a  much  better  idea  of  Mr.  Brown's  cha- 
racter, than  would  whole  pages  of  fulsome  flattery,  from  some  crawl- 
ing sycophant,  who,  'to  win  and  wear  favor,'  would  write  anything 

at  the  expense  of  truth. 

f^ 

"  'Philadelphia. 

"  'DEAR  SIR, — I  received  your  kind  letter,  dated  the  first  of  this 
month,  and  hasten  to  reply.  I  am,  perhaps,  unlike  most  dramatic 
writers  of  the  present,  or  any  other,  day — for  although  neither  of 
my  dramas  has  met  with  much  success,  I  think  both  have  met  with 


BIOGRAPHICAL    MEMOIR.  kd 

much  more  than  they  were  entitled  to.  This  impression  of  mine 
may  be  ascribable  to  my  utter  indifference  to  their  fate.  They  were 
written  rather  as  matters  of  relief  from  the  cares  and  toils  of  an 
arduous  profession,  than  with  any  view  to  their  representation  upon 
the  stage.  And  if  I  may  speak  frankly,  I  must  say,  they  derived 
greater  celebrity  from  their  author,  than  their  author  will  ever  derive 
from  them.  In  other  words,  it  was  not  so  remarkable  that  with  vast 
professional  engagements,  I  should  have  written  two  bad  plays,  as 
that  I  should  have  been  able  to  write  any  at  all.  '  Sertorius'  has 
been  performed  nine  times,  and  with  the  aid  of  Mr.  Booth,  was  well 
received.  The  'Prophet  of  St.  Paul's'  has  been  thrice  performed, 
and  by  the  aid  of  good  luck,  has  not  yet  been  damned;  but  for  my 
own  part,  I  should  be  unwilling  to  run  so  narrow  a  chance.  In  the 
worst  possible  result  however,  I  should  have  been  totally  unaffected, 
as  I  confess  to  you;  although  I  have  much  pleasure  in  the  composition 
of  such  matters,  I  have  no  interest  in  their  fate.  I  am  an  advocate, 
not  a  dramatist. 

"  'I  have  attended  to  your  request,  and  deposited  with  Messrs. 
Carey  &  Hart,  a  copy  of  '  Sertorius'  and  the  '  Prophet,'  which  I 
hope  you  will  shortly  receive. 

"  '  Very  respectfully  yours, 

"'DAVID  PAUL  BROWN.'" 

Anecdote  of  David  Paul  Brown : 

"  Some  fifteen  years  ago,  when  the  duties  of  a  juror  required  my 
regular  attendance  at  the  courts,  the  peculiar  manner  and  style  of 
this  gentleman's  pleading  struck  me  as  being  highly  dramatic — not 
an  affected,  theatrical  manner,  but  one  the  result  of  much  study  of 
human  nature,  the  effect  of  which  was  startling  and  almost  over- 
powering, particularly  to  the  poor  devil  about  undergoing  the  ordeal 
of  cross-examination.  One  case,  while  I  was  an  empaneled  juror, 


BIOGRAPHICAL    MEMOIR. 

left  an  impression  on  my  mind  that  time  can  never  erase.     The  wit- 
ness was  a  respectable  looking  man,  with  a  calm,  settled  countenance, 
as  placid  as  are  the  deep  waters  when  the  storms  have  passed  in 
their  fury  away.     There  was  not  in  any  one  of  his  strongly  marked 
features,  the  least  indication  or  index  to  a  volume  of  crimes,  which 
lay  hid  in  his  breast.     I  had  noticed  this  man  particularly,  and  in  a 
former  case,  had  received  as  gospel  his  evidence.     But  Mr.  Brown, 
the  attorney  in  the  case  before  the  court,  objected  to  his  evidence;  it 
should  not,  he  observed,  be  received.     The  reasons  were  demanded 
by  the  court — they  were  promptly  given :  the  man  was  a  convict, 
unpardoned,  and  thus  placed  beyond  the  pale  and  privilege  of  the 
law  by  his  crimes,  and  not  to  be  admitted  at  the  bar  otherwise  than 
as  a  criminal.     Much  excitement  ensued;  the  witness  looked  sur- 
prised ;  he  rebutted  the  charge  with  indignation,  spoke  of  character, 
law  and  justice — his  eyes  flashed  as  he  boldly  stated  to  the  court 
that  he  never  was  in  prison,  had  never  been  subject  to  the  lash  of 
the  law  in  any  shape.     Injured  innocence,  insulted  pride,  wounded 
honor,  all  seemed  to  rise  up  in  vengeance  against  the  bold  accuser. 
Mr.  Brown  arose  from  his  chair,  where  he  had  seated  himself  at  the 
commencement  of  the  witness's  declaration  of  innocence,  and  walked 
up  to  him.     There  was  determination  in  his  look ;  his  soul-searching 
eye  was  fixed  like  that  of  a  basilisk  on  the  witness.     The  efiect  was 
almost  the  same,  for  his  victim's  gaze  was  also  as  fixed ;  'the  one, 
however,  was  that  of  power — the  other  that  of  fear.     Mr.  Brown 
spoke ;  '  I  have  objected  to  your  evidence,  sir ;  this  objection  is 
founded  upon  a  knowledge  of  your  character.     Answer  me,  sir, 
were  you  not  convicted  and  punished  in  the  State  of  Dela^re,  for 
a  heinous  crime  ?'     *  No,  sir.'     This  was  uttered  with  an  evidently 
Assumed  boldness.     '  Never !'    <  No,  sir.'     '  If  I  were  to  strip  up  the 
sleeves  of  your  coat,  and  point  to  the  letter  R,  branded  on  your 
right  arm,  near  the  shoulder,  and  say  this  was  done  in  New  Castle, 
Delaware,  what  answer  would  you  make  ?'     The  poor  wretch  was 


BIOGRAPHICAL    MEMOIR. 

crushed — his  artificial  courage  melted  away  before  the  fire  of  an 
intellectual  eye.  It  is  scarcely  necessary  to  add,  Brown  gained  his 
cause.  From  that  moment  I  admired  him;  and  when  his  tragedy 
of  Sertorius  made  its  appearance,  I  read  it  with  additional  interest, 
from  the  fact  of  associating  a  highly  intellectual  scene  in  real  life, 
with  the  many  which  so  frequently  occur  in  dramatic  existence." 

In  addition  to  the  preceding  notice,  we  cannot,  per- 
haps, do  better  than  present  to  our  readers  the  follow- 
ing sketch,  by  a  distinguished  member  of  the  Bar,  (still 
in  practice,)  some  few  years  afterwards. 

Extract  from  the  private  journal  of  a  member  of  the 
Bar,  dated  September  15th,  1836  : 

"A  word  of  Mr.  Brown,  whose  accidental  presence  in  the  box 
with  me  this  evening,  and  devotion  to  Shakspeare,  suggests  a  remark 
or  two  in  this  connection.  Some  persons,  as  was  once  said  of  him, 
have  the  good  fortune  to  be  called  by  all  their  names  at  once  ;  it  is 
so  with  this  gentleman ;  it  is  never  Mr.  David  Brown,  or  Mr.  Paul 
Brown,  or  Mr.  David  P.  Brown,  or  Mr.  D.  Paul  Brown,  according 
to  a  modern  fancy,  but  David  Paul  Brown,  all  three  at  the  same 
time — an  entire  triumvirate — like  certain  illustrious  names  of  anti- 
quity, or  John  Quincy  Adams,  to  come  down  to  our  own  day.  But 
with  or  without  all  three  of  his  names,  he  is  a  remarkable  man.  He 
stands,  in  many  things,  at  the  head  of  the  profession,  in  my  humble 
judgment,  if  eloquence  be  a  test  of  professional  strength  or  distinc- 
tion— for  eloquence  he  undoubtedly  has,  and  of  a  high  order.  That 
godlike  gift,  which  likens  man  to  angels  in  its  sublimest  flights,  is 
his,  to  an  extent  unsurpassed  by  any  one  here  in  daily  practice, 
whom  I  have  yet  heard.  There  may  be  others  equally  eloquent, 


BIOGRAPHICAL    MEMOIR. 

others  who  have  ceased  to  mingle  in  daily  contests — I  am  told  there 
are  such,  whose  style  of  speaking  is  as  classic,  as  powerful,  but  I 
have  not  heard  them.  Of  those  whom  I  have  listened  to,  I  should 
say,  that  the  gift  of  oratory,  in  some  of  its  highest  departments,  is 
assuredly  Mr.  David  Paul  Brown's,  by  title  indefeasible  and  beyond 
dispute.  I  have  known  him  carry  a  whole  court  room  by  storm. 
This  may  give  an  idea  of  his  style — it  is  storming  of  entrenchments 
with  him  from  beginning  to  end,  a  charge  of  bayonets,  downright 
cut  and  thrust  work — the  battle  axe  and  battering  ram,  from  the 
moment  he  rises  till  he  takes  his  seat.  We  hear  of  the  sword  and 
the  pen  ;  with  him  it  is  the  sword  and  the  tongue ;  his  manner  of 
speaking  resembling  often  the  power  of  the  sword,  for  he  slashes 
about  him,  right  and  left,  cutting  down  every  thing — sparing  nothing 
— galloping  headlong  over  dead  and  dying,  till  he  accomplishes  the 
one  great  object  of  beating  and  prostrating  the  enemy's  lines,  bearing 
down  his  defences,  and  planting  his  victorious  standard  upon  the 
rums,  it  may  be  inferred  that  he  is  equally  powerful  to  resist; 
evading,  with  equal  dexterity,  the  blow  himself  would  aim.  With 
all  this,  he  has  the  high  merit  of  self-possession,  which  he  retains  at 
all  times,  in  the  midst  even  of  a  torrent  in  which  other  men  would 
be  lost.  He  speaks  a  good  deal  like  McDuffie,  of  South  Carolina, 
using  the  same  fire  and  force,  and  would  be  a  Hercules  in  the  field 
of  stump  oratory;  and  yet  I  would  not  convey  the  idea,  that  his 
style  is  exclusively  of  the  boisterous,  headlong  order — on  the  con- 
trary, the  steel  is  often  as  polished  as  the  arrow  is  barbed,  and  it 
appears  to  be  his  aim,  and  he  succeeds  in  it  too,  to  be  distinguished 
not  less  for  the  graces,  than  the  power  of  his  oratory.  He  has' a  fine 
command  of  language;  and  then,  you  can  always  hear  what  he  says, 
for  he  speaks  with  remarkable  distinctness,  even  in  his  most  animated 
moments,  and  gives  a  clear,  open  sound  to  every  word  that  he  utters. 
"As  to  'action,  action,  action,'  his  is  the  action  of  the  mind  and 
the  soul — the  head  and  the  heart — the  hands  and  the  feet,  at  one 


BIOGRAPHICAL    MEMOIR.  ]xv 

and  the  same  moment  of  time ;  and  if  his  movements  are  sometimes 
a  little  too  sudden,  and  if  he  does  sometimes  walk  about  a  little  too 
much,  let  those  who  would  criticise,  emulate  his  success,  and  try  to 
do  better.  He  has  the  art  of  carrying  you  along  with  him  from  the 
beginning  to  the  end  of  the  chapter,  retaining  his  hold  all  the  time. 
Hence,  he  never  fatigues ;  and  this  is  one  secret  of  his  success.  I 
must  not  omit  to  speak  of  his  uniform  courtesy  to  his  opponents,  and 
constant  equanimity  of  temper;  virtues  in  which  younger  men,  and 
some  who  are  not  younger,  would  do  well  to  imitate  him.  He  has 
certainly  the  art  of  making  the  most  of  his  case,  and  the  worst  of 
his  adversary's.  He  is  playful  as  well  as  sarcastic,  but  I  never 
heard  him  indulge  in  low  or  coarse  jokes.  On  questions  of  evidence 
he  has  great  power,  and  when  taken  suddenly  in  the  midst  of  a 
cause  on  exceptions  started,  I  have  known  him  argue  them  with 
extraordinary  ability  and  force.  I  heard  a  distinguished  lawyer, 
himself  an  accomplished  speaker,  who  is  still  occasionally  to  be  seen 
in  court,  commend  him  highly  on  this  head.  In  the  examination  of 
witnesses,  his  skill  and  power  have  elicited  praise  from  tongues  and 
pens,  abler  than  mine,  and  I  pass  by  that  great  field  of  his  success. 
"  I  am  not  aware  of  objections  to  his  style — it  may  be  that  he  is 
sometimes  over  zealous,  and  that  a  little  more  variety  would  enhance 
the  effect  of  his  speeches.  The  first  is,  at  least,  that  which  leans  to 
the  side  of  excellence  in  oratory,  and  belongs  to  genius,  and  in  his 
case,  is  connected  with,  and  arises  from  a  quality  the  noblest  of  any 
that  an  advocate  can  possess,  and  which  this  gentleman  eminently 
possesses,  the  '  sacred  duty'  which  Brougham  so  eloquently  described 
and  enforced,  and  which  needs  only  to  be  named,  to  meet  a  ready 
response  in  the  heart  of  every  member  of  the  profession  who  rightly 
appreciates  his  high  calling — the  sacred  duty  he  owes  his  client.  In 
this  respect,  Mr.  Brown  is  entitled  to  the  highest  praise,  for  he  goes 
for  his  client  through  and  through — his  client  first,  his  client  last, 
his  client  always. 


BIOGRAPHICAL    MEMOIR. 

"A  word  of  his  industry;  and  if  this  rambling  sketch  has  already 
extended  itself  to  greater  length  than  I  had  at  first  contemplated,  it 
is  at  least  a  reason  that  I  should  not  leave  it  incomplete.  With 
every  just  admiration  for  the  qualities  of  learning  and  high  profes- 
sional attainments,  united  with  personal  accomplishments,  which  I 
have  witnessed  at  this  bar,  I  have  been  disappointed  in  the.  style  of 
speaking.  Hence,  I  have  dwelt  the  rather  upon  one  who  seems  to 
have  made  the  eloquence  of  the  bar  his  ambition.  But  his  industry 
is  equally  the  subject  of  praise.  His  practice  is  very  large — involving, 
of  course,  daily  and  hourly  occupation  at  the  bar,  and  with  his 
clients  early  and  late,  yet  he  gets  through  it  all,  without  ever 
appearing  to  be  discomposed,  of  even  seeming  to  be  in  a  hurry.  His 
success  speaks  for  itself.  You  meet  him  everywhere,  almost  at  the 

same  moment,  making  speeches,  I  had  almost  said  every  day  in 

%• 
every  court;  yet  he  is  perpetually  at  work  at  something  else;  writing 

addresses  for  the  '  Artist  Fund  Society' — delivering  orations  before 
the  'Phi  Beta  Kappa  Society,'  or  lectures  upon  'Hamlet/  or  writing 
plays  or  essays  upon  all  subjects,  besides  being  prominent  at  many 
a  convivial  party.  The  only  way  for  accounting  for  it  all  is,  by 
referring  it  to  great  and  unceasing  industry,  and  I  am  told  that  his 
is  very  great.  And  after  all,  how  can  men  hope  to  succeed  in  any 
thing  without  it  ?  '  The  mind  of  man  is  a  mine  of  labor.'  So  said 
a  distinguished  gentleman  in  my  hearing  not  long  ago — distinguished 
for  high  professional  reputation  not  less  than  social  eminence.  One 
of  the  commentators  on  the  Old  Testament  remarks,  on  the  first 
chapter  of  Genesis,  that '  to  man,  moreover,  it  is  enjoined  to  subdue 
the  earth ;  to  subject  it  to  his  own  and  his  posterity's  dominion  by 
due  labor  and  industry,  so  that  it  is  plain,  man,  even  in  his  perfect 
state,  was  designed  for  industry  and  toil.'  Let  us  profit  by  the 
precept." 

The  habits  of  Mr.  B.  are  most  abstemious,  and  he 
has  often   been  heard   to   say,  that  he  never  dined 


BIOGRAPHICAL    MEMOIR. 

when  he  expected  to  speak  in  the  afternoon,  upon  any 
case  of  importance,  as  the  dinner  would  cost  him  more 
mental  effort  than  it  was  worth,  and  contribute  to  lose 
the  cause  besides.  In  no  circumstance,  however,  does 
he  ever  omit  his  breakfast — it  is  his  great  meal,  and 
sometimes  the  only  one  for  the  entire  day.  Few  men 
of  the  age  of  forty  have  his  activity  and  elasticity  of 
body ;  and  since  his  boyhood  he  has  never  been  known 
to  be  sick  except  upon  one  occasion.  Before  he  was 
twenty-five  years  of  age,  water  was  his  only  drink, 
and  he  rarely  retired  to  bed  after  ten  o'clock.  To  this 
he  imputes  his  entire  freedom  from  aches,  and  pains, 
and  disease  of  every  sort.  His  mind  is  as  sound  as 
his  body — never  depressed,  never  unduly  excited,  pre- 
serving always  a  cheerful  and  an  unbroken  equanimity, 
and  exhibiting  none  of  the  effects  of  care,  of  time,  or 
of  study.  In  colloquial  intercourse  he  has  no  supe- 
riors— gay  and  sparkling,  or  grave  and  meditative,  as 
occasion  may  require.  He  can  adapt  himself  to  all 
conditions  of  life — kind  to  all,  neither  overbearing  nor 
obsequious ;  a  friend  to  the  poor,  and  no  foe  to  the 
rich — considering  himself  on  a  level  with  the  loftiest, 
and  not  above  the  level  of  the  humblest;  without 
courting  the  favor  of  either,  he  seems  to  enjoy  the 
sympathies  and  friendship  of  both.  With  no  political 
attachments  or  antipathies,  while  he  has  always  been  a 
federalist,  in  social  intercouse  he  harmonizes  entirely 
with  the  democracy  of  the  country,  and  makes  no 


Ixviii  BIOGRAPHICAL    MEMOIR. 

distinction  between,  the  black,  and  red  and  Hue 
cockade. 

In  speaking,  as  has  been  said,  he  uses  considerable 
gestures,  but  his  action  is  suited  to  the  thought.  He 
changes  his  position  frequently,  moves  backwards  and 
forwards — appeals  to  -court,  jury,  counsel,  and  some- 
times even  to  the  general  audience.  His  pathos  melts 
and  subdues,  his  invective  startles  and  dismays  every 
one.  The  full  master  of  the  choicest  and  the  most 
powerful  and  abundant  language,  he  is  never  at  a  loss 
for  the  best  words  in  their  best  places ;  and  with  a 
voice  that,  for  compass  and  sweetness,  has  no  equal  in 
the  United  States,  he  seems  to  sport  rather  than  to 
labor,  even  in  the  severest  professional  efforts.  He 
speaks  without  notes,  or  any  apparent  preparation — 
relies  entirely  upon  his  memory  for  the  evidence  of  a 
case,  however  long  or  complicated — reads  few  books 
during  an  argument— cites  principles  rather  than  cases 
— seldom  speaks  more  than  two  hours  in  any  case, 
and  runs  through  his  time  and  his  task  so  smoothly, 
that  you  wonder,  when  you  are  told  he  has  spoken  so 
long. 

His  examination  of  witnesses  is  as  remarkable  in 
its  line  -as  his  speeches,  and  perhaps  manifests,  even 
superior  mental  powers;  it  is  perfectly  sui  generis. 
His  eye  is  never  removed  from  the  witness — he  rarely 
takes  a  note ;  he  puts  his  question  so  plainly,  and  so 
directly,  as  to  admit  of  no  equivocation,  and  never 


BIOGRAPHICAL    MEMOIR.  Jxjx 

leaves  it  till  he  gets  an  answer.  With  the  mild,  he  is 
always  mild ;  with  the  timid,  forbearing ;  shrewd  with 
the  crafty,  and  resolute  with  the  refractory.  Whether 
it  is  his  great  fame,  or  his  innate  power,  as  a  cross- 
examiner,  it  is  hard  to  say;  but  it  is  certain  that  from 
the  moment  he  takes  up  the  witness,  he  never  lets  him 
go  till  he  exhausts  him,  or  wields  a  power  over  him 
that  astonishes  every  one,  and  none  more  than  the 
witness  himself.  An  examination  of  a  witness  is 
generally  a  dry  matter  with  the  multitude — not  so  in 
his  case ;  every  eye  and  every  mind  are  fixed  upon  it, 
with  the  most  intense  interest  and  anxiety;  and  it  is 
sometimes  left  in  doubt  whether  his  triumphs  are  most 
to  be  attributed  to  the  fervor,  and  brilliancy,  and 
beauty  of  his  elocution,  or  the  quickness,  acuteness, 
and  power  of  his  examination  of  witnesses. 

In  his  literature,  his  mode  of  composition  is  some- 
what borrowed  from  his  forensic  habits.  It  is  pecu- 
liar— he  never  writes  himself,  but  leaves  it  to  his 
amanuensis,  while  he  walks  the  room,  and  sometimes 
dictates  an  entire  lecture  in  a  single  night,  without 
finding  it  necessary  to  correct  a  point  or  a  syllable. 
He  never  pauses  for,  or  alters  a  word.  This  feature, 
as  has  been  said,  imparts  naturally  to  his  written  pro- 
ductions somewhat  of  the  character  of  his  speeches ; 
it  takes  from  their  simplicity  and  smoothness,  but  adds 
largely  to  their  boldness  and  vigor.  It  need  scarcely 
be  said,  that  he  composes  or  writes  with  great  ease. 


BIOGRAPHICAL    MEMOIR. 

"  Sertorius"  was  written  in  two  weeks,  and  the  "  Pro- 
phet of  St.  Paul's"  in  less  than  a  month,  and  that,  too, 
in  the  midst  of  heavy  professional  engagements.  One 
circumstance  connected  with  the  former  play,  deserves 
to  be  mentioned.  At  the  tune  when  it  was  written, 
Mr.  Brown's  little  family  were  spending  the  summer 
at  a  watering  place,  some  thirty  miles  from  Philadel- 
phia. He  had  occasion,  from  being  employed  in  the 
Aspden  case,  to  be  daily  in  Philadelphia.  He  left  the 
city  every  evening  at  dusk,  on  horseback,  and  arrived 
at  his  journey's  end  about  midnight.  To  beguile  his 
night's  ride  of  its  dreariness,  and  thus  shorten  his  jour- 
ney, he  employed  himself  in  composing  the  play,  and  im- 
pressing it  upon  his  memory,  and  upon  his  arrival  at 
the  Yellow  Springs,  he  committed  the  result  of  his 
agreeable  labor  to  paper.  Such  was  the  origin  of 
"  Sertorius."  Upon  one  occasion  a  gentleman  having 
said  to  him  that  his  play  contained  some  very  rough 
lines.  "There  is  no  doubt  of  it,"  said  the  author; 
"they  were  concocted,  I  suppose,  while  I  rode  Mr. 
Sergeant's  horse,  which  was  an  exceedingly  hard  trot- 
ter,  and  frequently  blundered  a  little,  and  unlike  Pe- 
gasus, was  certainly  no  favorite  of  the  muses.  This 
composing  upon  all  fours  is  sometimes  expedient,  but 
seldom  very  agreeable  or  profitable." 

The  prologues  to  both  the  plays  referred  to,  were 
written  by  the  Hon.  Joseph  R.  Ingersoll,  (to  whom 
one  of  them  was  inscribed,)  a  highly  accomplished 


BIOGRAPHICAL    MEMOIR.  }xxj 

scholar — a  gentleman  of  the  most  refined  literary 
taste,  and  one  of  the  soundest  lawyers  and  most  bril- 
liant advocates  at  the  bar.  And  here,  in  passing,  we 
may  be  permitted  to  mention  to  the  credit  of  both 
these  gentlemen,  that  although  during  a  quarter  of  a 
century,  they  were  frequently  engaged  with  or  against 
each  other  in  cases  of  great  popular  interests  and 
acrimony,  they  never,  during  their  joint  professional 
career,  had  the  slightest  personal  difference  or  dis- 
pleasure. 

In  1832,  he  was  engaged  in  the  celebrated  case  of 
Mrs.  Chapman,  charged  with  the  murder  of  her  hus- 
band, which  lasted  two  weeks,  and  resulted  in  the 
acquittal  of  the  defendant.  And  on  the  22nd  of  Feb- 
ruary of  the  next  year,  he  delivered  the  Address  before 
the  city  authorities  and  a  vast  assemblage  in  the  Wash- 
ington square,  upon  the  occasion  of  laying  the  corner- 
stone for  the  monument  to  be  erected  to  the  memory 
of  the  Father  of  his  country.  This  speech  was  pre- 
pared upon  twenty-four  hours  notice,  and  occupied 
nearly  two  hours  in  the  delivery — of  its  merits,  as  it 
has  been  published,  nothing  further  need  be  said. 

In  the  year  1836,  he  lost  his  legal  preceptor,  the 
venerable  Rawle — and  by  appointment  of  the  Penn- 
sylvania Abolition  Society,  (of  which  the  deceased  had 
been  president,)  delivered  an  eulogy  upon  his  memory 
and  his  virtues.  This  production,  whatever  may  be  its 
defects,  at  least  manifests  great  affection  and  reverence. 


Ixxii  BIOGRAPHICAL    MEMOIR. 

The  disposition  and  deportment  of  Mr.  Brown,  at 
the  bar,  are  perhaps  best  summed  up  in  the  last  of  his 
"Golden  Rules"  for  lawyers:  "Be  respectful  to  the 
court  and  jury,  kind  to  your  colleague,  civil  to  your 
antagonist,  but  never  sacrifice  the  slightest  principle 
of  duty  to  an  overweening  deference  towards  either." 

One  of  the  most  marked  features  in  Mr.  B.'s  profes- 
sional life,  is  his  tender  regard  for  his  younger  brethren 
at  the  bar.  Their  interests  and  concerns  are  his.  Is 
a  colleague  required — he  always  recommends  a  young 
man,  though  it  sometimes  adds  to,  instead  of  diminish- 
ing, his  labor.  Are  his  young  friends  in  difficulty — he 
is  their  advocate.  Are  their  privileges  invaded — he  is 
their  defender.  Having  known  the  difficulties  of  rising 
in  the  profession,  he  waits  not  to  be  solicited,  but  freely 
and  promptly  takes  youthful  and  struggling  merit  by 
the  hand,  and  makes  its  cause  his  own.  He  never 
withholds  either  advice  or  assistance,  whatever  may  be 
the  sacrifice.  And  there  are  scores  of  men,  at  the 
Philadelphia  bar,  who  can  date  their  rise  from  an  asso- 
ciation or  connection  with  the  subject  of  this  memoir. 

The  consequence  of  this  liberal,  sympathetic,  and 
disinterested  course,  may  be  readily  conceived.  Mr. 
Brown  at  court,  is  in  the  heart  of  his  own  professional 
family — treating  every  one  with  kindness,  and  receiv- 
ing kindness  from  every  one  in  return.  He  takes 
advantage  of  no  man,  and  no  man  takes  advantage  of 
him — his  life  is  happy,  and  he  reflects  the  happiness, 


BIOGRAPHICAL    MEMOIR.  Ixxiti 

that  he  derives  from  those  by  whom  he  is  surrounded. 
Why,  then,  in  contemplating  these  multiplied  enjoy- 
ments, should  discontented  cavillers  talk  of  the  aspe- 
rities and  dissensions  of  the  bar? 

The  man  who  is  first  to  make  that  discovery  will 
find  the  cause  in  himself. 

As  one  of  the  practical  manifestations  of  regard  for 
the  advancement  of  his  young  friends,  at  the  request 
of  some  of  the  most  distinguished  among  them,  in  the 
year  1835,  he  threw  together  his  twenty  "Golden 
Rules"  for  the  examination  of  witnesses,  which,  as 
they  have  been  through  three  editions,  and  are  now  in 
demand  through  the  whole  of  the  United  States,  and 
as  they  convey  clear  indications  of  the  character  of 
the  author,  we  take  leave  to  present  in  this  connection. 


Ittll* 

\— ^-* 


FOR  THE  EXAMINATION  OF  WITNESSES. 

"  There  is  often  more  eloquence,  more  mind,  more 
knowledge  of  human  nature  displayed  in  the  examina- 
tion of  witnesses,  than  in  the  discussion  of  the  cause 
to  which  their  testimony  relates.  Evidence  without 
argument,  is  worth  much  more  than  argument  without 
evidence.  In  their  union,  they  are  irresistible  ! 

"  The  trial  of  a  cause  may  be  aptly  compared  to  the 

VOL.  i. — 6 


BIOGRAPHICAL    MEMOIR. 

privilege  of  cross-examination,  take  from  your  oppo- 
nent the  same  privilege  it  thus  gives  you,  and,  in  addi- 
tion thereto,  not  only  render  everything  unfavorable 
said  by  the  witness,  doubly  operative  against  the  party 
calling  him,  but  also  deprive  that  party  of  the  power 
of  counteracting  the  effect  of  the  testimony. 

"  Sixth. — Never  ask  a  question  without  an  object — 
nor  without  being  able  to  connect  that  object  with  the 
case,  if  objected  to  as  irrelative. 

"Seventh. — Be  careful  not  to  put  your  question  in 
such  a  shape  that,  if  opposed  for  informality,  you  can- 
not sustain  it,  or,  at  all  events,  produce  strong  reason 
in  its  support.  Frequent  failures  in  the  discussion  of 
points  of  evidence,  enfeeble  your  strength  in  the  esti- 
mation of  the  jury,  and  greatly  impair  your  hopes  in 
the  final  result. 

"Eighth. — Never  object  to  a  question  from  your 
adversary,  without  being  able  and  disposed  to  enforce 
the  objection.  Nothing  is  so  monstrous  as  to  be  con- 
stantly making  and  withdrawing  objections — it  either 
indicates  a  want  of  correct  perception  in  making  them, 
or  a  deficiency  of  reason,  or  of  moral  courage,  in  not 
making  them  good. 

"Ninth. — Speak  to  your  witness  clearly  and  dis- 
tinctly, as -if  you  were  awake,  and  engaged  in  a  matter 
of  interest;  and  make  him  also  speak  distinctly  and  to 
your  question.  How  can  it  be  supposed  that  the  court 
and  jury  will  be  inclined  to  listen,  when  the  only  strug- 


BIOGRAPHICAL    MEMOIR.  Ixxvii 

gle  seems  to  be — whether  the  counsel  or  the  witness 
shall  first  go  to  sleep? 

"  Tenth. — Modulate  your  voice  as  circumstances  may 
direct. 

"  Inspire  the  fearful,  and  repress  the  bold." 

"Eleventh. — Never  begin  before  you  are  ready — 
and  always  finish  when  you  have  done.  In  other 
words,  do  not  question  for  question's  sake — but  for  an 
answer. 

CROSS-EXAMINATION. 

"First. — Except  in  indifferent  matters,  never  take 
your  eye  from  that  of  the  witness.  This  is  a  channel 
of  communication,  from  mind  to  mind,  the  loss  of 
which  nothing  can  compensate. 

"  Truth,  falsehood,  hatred,  anger,  scorn,  despair, 
And  all  the  passions — all  the  soul  is  there." 

"Second. — Be  not  regardless,  either,  of  the  voice  of 
the  witness ;  next  to  the  eye,  this  is  perhaps  the  best 
interpreter  of  his  mind.  The  very  design  to  screen  con- 
science from  crime,  the  mental  reservation  of  the  witness, 
is  often  manifested  in  the  tone  or  accent,  or  emphasis 
of  the  voice.  For  instance,  it  becoming  important  to 
know  that  the  witness  was  at  the  corner  of  Sixth  and 
Chestnut  streets  at  a  certain  time,  the  question  is 
asked — were  you  at  the  corner  of  Sixth  and  Chestnut 


Ixxviii  BIOGRAPHICAL    MEMOIR. 

streets  at  six  o'clock  ?  A  frank  witness  would  answer, 
perhaps,  "I  was  near  there."  But  a  witness  who  is 
desirous  to  conceal  the  fact,  and  defeat  your  object, 
(speaking  to  the  letter  rather  than  to  the  spirit  of  the 
inquiry,)  answers — no;  although  he  may  have  been 
within  a  stone's  throw  of  the  place,  or  at  the  very 
place,  within  ten  minutes  of  the  time.  The  common 
answer  of  such  a  witness  would  be — I  was  not  at  the 
corner  at  six  o'clock.  Emphasis  upon  both  words 
plainly  implies  a  mental  evasion  or  equivocation,  and 
gives  rise,  with  a  skilful  examiner,  to  the  question,  At 
what  hour  were  you  at  the  corner?  or  at  what  place 
were  you  at  six  o'clock  ?  And  in  nine  instances  out 
of  ten,  it  will  appear  that  the  witness  was  at  the  place 
about  the  time,  or  at  the  time  about  the  place.  There 
is  no  scope  for  further  illustrations ;  but  be  watchful, 
I  say,  of  the  voice,  and  the  principle  may  be  easily 
applied. 

"  Third. — Be  mild  with  the  mild — shrewd  with  the 
crafty — confiding  with  the  honest — merciful  to  the 
young,  the  frail,  or  the  fearful — rough  to  the  ruffian, 
and  a  thunderbolt  to  the  liar.  But  in  all  this,  never 
be  unmindful  of  your  own  dignity.  Bring  to  bear  all 
the  powers  of  your  mind,  not  that  you  may  shine,  but 
that  virtue  may  triumph,  and  your  cause  may  prosper. 

"Fourth. — In  a  criminal,  especially  in  a  capital  case, 
so  long  as  your  cause  stands  well,  ask  but  few  ques- 
tions, and  be  certain  never  to  ask  any,  the  answer  to 


BIOGRAPHICAL    MEMOIR. 

which  (if  against  you,)  may  destroy  your  client,  unless 
you  know  the  witness  perfectly  well,  and  know  that 
his  answer  will  be  favorable  equally  well ;  or  unless 
you  be  prepared  with  testimony  to  destroy  him,  if  he 
play  traitor  to  the  truth  and  your  expectations. 

"Fifth. — An  equivocal  question  is  almost  as  much 
to  be  avoided  and  condemned,  as  an  equivocal  answer. 
Singleness  of  purpose,  clearly  expressed,  is  the  best 
trait  in  the  examination  of  witnesses — whether  they 
be  honest  or  the  reverse.  Falsehood  is  not  detected 
by  cunning,  but  by  the  light  of  truth,  or  if  by  cun- 
ning, it  is  the  cunning  of  the  witness  and  not  of  the 
counsel. 

"Sixth. — If  the  witness  determine  to  be  witty  or 
refractory  with  you,  you  had  better  settle  that  account 
with  him  at  first,  or  its  items  will  increase  with  the 
examination.  Let  him  have  an  opportunity  of  satis- 
fying himself,  either  that  he  has  mistaken  your  power, 
or  his  own.  But,  in  any  result,  be  careful  that  you 
do  not  lose  your  temper.  Anger  is  always,  either  the 
precursor  or  evidence  of  assured  defeat  in  any  intel- 
lectual conflict. 

"Seventh. — Like  a  skilful  chess-player,  in  every 
move  fix  your  mind  upon  the  combinations  and  rela- 
tions of  the  game — partial  and  temporary  success  may 
otherwise  end  in  total  and  remediless  defeat. 

"Eighth. — Never  undervalue  your  adversary;  but 
stand  steadily  upon  your  guard.  A  random  blow  may 


1XXX  BIOGRAPHICAL    MEMOIR. 

be  just  as  fatal,  as  though  it  were  directed  by  the 
most  consummate  skill — the  negligence  of  one  often 
cures,  and  sometimes  renders  effective,  the  blunders  of 
another. 

"Ninth. — Be  respectful  to  the  court  and  the  jury — 
kind  to  your  colleague — civil  to  your  antagonist — but 
never  sacrifice  the  slightest  principle  of  duty  to  an 
overweening  deference  towards  either." 

In  the  year  1850,  actuated  by  the  same  philanthro- 
pic spirit  that  induced  his  "  Golden  Rules,"  Mr.  Brown 
prepared  what  he  calls  "Capital  Hints  for  Capital 
Cases,"  mainly  intended  for  the  instruction  of  his  sons, 
just  then  admitted  to  the  bar,  but  also  designed  for  the 
benefit  of  all  those  whose  attention  might  be  directed 
to  the  higher  order  of  criminal  practice.  As  these  in- 
structions are  brief,  and  the  edition  has  been  exhausted, 
they  are  also  presented  to  the  reader  and  to  the  pro- 
fession. 


Capital  f^inte  in  Capital 

INSTRUCTION  FROM  A  FATHER  TO  HIS  SONS. 

I.  "  Firmness  and  decision  are  as  necessary  as  know- 
ledge and  talents;  the  heart  can  do  almost  as  well 
without  the  head  as  the  head  without  the  heart. 


BIOGRAPHICAL    MEMOIR.  Ixxxi 

There  can  be  no  cold-blooded  defence.  An  appropri- 
ate and  becoming  manner  is  scarcely  less  necessary, 
than  appropriate  and  becoming  matter.  A  judicious 
and  clear  development  of  the  facts  of  a  case,  is  as  im- 
portant as  the  ablest  and  most  eloquent  argument.  In 
a  doubtful  case,  a  skilful  examination  alone  may  secure 
a  verdict;  but  the  best  argument,  without  such  an 
examination,  will  generally  result  in  a  failure.  An 
artist  cannot  paint  without  his  colors ;  and  the  facts 
derived  from  the  testimony,  are  the  colors  or  materials 
for  the  speech. 

II.  "  There  is  what  may  be  called  an  argumentative 
cross-examination,  which  exhibits  to  the  jury  the  rea- 
soning of  the  counsel,  in  immediate  direct  connection 
with  the  testimony  of  the  witnesses.  For  instance, 
suppose  the  following  cross-examination  of  a  witness  : 

"  Have  you  had  any  dispute  or  difference  with  the 
defendant  ? — No.  Have  you  been  upon  friendly  terms 
with  him  for  many  years  ? — Yes.  Have  you  been 
under  obligations  to  him? — Yes.  Well,  then,  having 
had  no  difference,  but  being  for  a  long  time  upon 
friendly  terms,  and  being  also  under  obligation  and 
bound  in  gratitude  to  him,  how  did  it  happen  that  you 
were  so  vigilant  and  active  in  your  efforts  for  his 
detection  and  conviction  ? 

"An  examination  of  this  character  can  scarcely  fail 
justly  to  produce  most  unfavorable  impressions  of  the 
witness. 


Ixxxii  BIOGRAPHICAL    MEMOIR. 

III.  "Again,  it  is  sometimes  judicious  to  compel  him 
to  exhibit  his  own  unworthiness  of  belief,  by  bringing 
before  him  direct  and  unequivocal  contradictions  in  his 
testimony,  and  then  asking  him  to  explain  and  recon- 
cile them  if  he  can.     I  have   seen  a  witness  struck 
dumb   by   this   mode    of  cross-examination;    and    in 
many   cases  it   is   much   better   thus  to  present   it, 
than   to   reserve    the   contradiction   for  after   discus- 
sion;— it  is   fresher,  fairer,  more    candid,  and   more 
efficient. 

IV.  "  Before  you  venture  upon  the  trial  of  a  capital 
case,  be  well  assured  in  your  own  mind,  that  you  are  com- 
petent for  the  hazardous  duty  you  are  about  to  assume. 
Remember,  the  blood  of  the  defendant  may  be  upon 
you,  if  your  task  be  feebly  performed;  and  do  not, 
therefore,  allow  a  feverish  desire  for  premature  noto- 
riety— in  a  case  of  great  popular  excitement — to  blind 
you  to  the  difficulties  and  dangers  by  which  you  will 
inevitably  be  surrounded.     The  trumpet  of  fame  can- 
not drown  the  small  still  voice  of  remorse. 

V.  "  Being  well  assured  that  you  are  able,  in  point 
of  intellect  and  knowledge,  be  equally  well  convinced 
that  your  feelings  are  deeply  enlisted  for  the  hapless 
being  you  are  called  upon  to  defend,  and  that  these 
feelings,  instead  of  impairing  your  efforts,  will  contri- 
bute to  strengthen  and  enforce  them.    You  should  feel 
as  though  you  were  defending  yourself,  which  you  will 
naturally  do,  by  constantly  holding  in  view  the  life  of 


BIOGRAPHICAL    MEMOIR. 

the  prisoner,  the  gibbet,  and  his  forlorn  and  heart- 
stricken  survivors. 

VI.  "You  must  know  no  fear  but  that  of  failure ;  and 
even  that,  you  must  permit  nobody  else  to'  discover 
through  you.     Waive  no  right  that  you  possess  that 
may  affect  the  defendant — yield  tribute  to  no  autho- 
rity that  is  illegitimately  exerted  to  his  injury — recol- 
lect, you  guard  the  citadel  of  human  life — be  wary,  and 
be  firm.     The  judge  and  the  jury,  it  is  true,  may  take 
the  life  of  the  prisoner,  but  you  are  not  to  give  it  away. 
They  must  reach  it  over  your  own  prostrate  body. 

VII.  "  In  all  you  think,  and  say,  and  do,  remember 
your  strength  is  nothing ;  there  is  but  one  arm  that  is 
powerful  to  save,  and  in  relying  upon  that  arm  you  derive 
a  support,  the  mere  consciousness  of  which  is  both  a 
sword  and  shield  in  the  hour  of  extremest  peril.     You 
may  not  acquit  the  guilty ;  nay,  you  may  not  acquit 
the  innocent ;  but  you  will,  at  least,  by  a  firm,  faithful, 
and  fearless  discharge  of  your  duty,  acquit  yourself.    I 
have  said,  that  manner  is  scarcely  less  necessary  than 
matter;  indeed,  rightly  considered,  it  is  matter. 

VIII.  "  You  must  enter  upon  the  trial  of  a  capital  case, 
as  a  physician  should  enter  the  death-bed  scene — calmly, 
gravely,  solemnly — all  eyes  are  upon  you— all  hopes 
are  upon  you — all  fears  are  upon  you.     There  is  no 
time   for  flippancy,    agitation,    or   irresolution — much 
less,  for  smiles  or  merriment;   sport  would  as  well 
become  a  charnel-house. 


1XXX1V  BIOGRAPHICAL    MEMOIR. 

IX.  "  Stand  by  the  prisoner  while  he  makes  his  chal- 
lenges;  advise  with  him — comfort  him   arid   sustain 
him.     When  you  repeat  his  challenges,  do  it  in  a  mild 
and  inoffensive  way,  lest  you   may  create  enemies, 
while  your  chief  object  is  to  secure  friends.     If  you 
ever  challenge  for  cause,  and  the  challenge  fail,  be  cer- 
tain that  you  have  not  exhausted  your  right  to  a 
peremptory    challenge,    and    invariably    exercise    it. 
Never  challenge  the  twelfth  juror,  unless  you  are  rea- 
sonably certain  that  he  who  may  be  called  in  his  place, 
will  be  more  favorable  to  the  prisoner. 

X.  "  The  jury  being  complete,  deliberately  proceed  to 
the  trial  of  the  cause.     I  say  deliberately — no  hurry — 
no  confusion — no  gossip— no  levity — no  divided  atten- 
tion; note  everything  with  the  'very  comment  of  your 
soul ;'  and  while  you  look  at  all,  bear  in  mind,  the  pri- 
soner and  all  connected  with  him,  look  at  you.     If 
prosecuting  witnesses  do  not  affect  your  defence,  don't 
cross-examine  them  at  all,  unless  you  are  certain  they 
can,  and  will,  prove  something  affirmatively  for  the 
defence.     In  trying  a  case,  if  the  character  of  the 
defendant  be   strong  and   his  facts  weak,  introduce 
character  first.     If  his  facts  be  strong  and  his  character 
weak,  either  introduce  character  at  the  last,  or  not  at 
all.     Never  despair — I  have  known  the  best  case  in 
the  beginning  to  prove  the  worst  in  the  end ;  and  the 
worst  at  first,  to  be  the  best  at  last. 

XI.  "  If  the  unhappy  man  have  a  family,  much  as  it 


BIOGRAPHICAL    MEMOIR.  IxXXV 

may  cost,  the  family  should  be  present  in  the  hour  of 
his  extremest  need.  He  will  suffer  more,  and  they  will 
suffer  more,  by  their  absence.  Their  presence  gives  a 
proper  tone  and  complexion  to  the  awful  scene.  It  is 
worth  a  thousand  fancy  sketches  of  domestic,  parental, 
conjugal,  or  filial  agony.  When  the  verdict  shall  be 
returned,  take  your  post  by  the  prisoner,  calm,  col- 
lected, prepared  for,  and  equal  to,  either  fortune. 

XII.  "  If  your  efforts  should  be  crowned  with  success, 
be  grateful  to  that  power  which  controls  all  things,  but 
exhibit  no  vain  spirit  of  triumph.  If  the  defendant  be 
convicted,  nerve  yourself  to  receive  and  bear  the  blow, 
and  still  do  not  despair ;  much  yet  remains  to  be  done. 
After  a  verdict  of  guilty,  if  you  doubt  the  sufficiency 
of  the  evidence  or  charge  of  the  court,  or  the  decision 
of  the  judge  upon  the  points  of  law,  or  fairness  of  the 
jury,  move  for  a  new  trial ;  if  none  of  these  grounds 
exist,  or  if  you  -should  urge  them  unsuccessfully,  enter 
a  motion  in  arrest  of  judgment,  provided  there  is  any 
actual  or  supposed  error  upon  the  face  of  the  record. 

XIII.  "  If  this  effort  should  also  fail,  the  next  awful 
step  will  be  the  judgment.    Here,  too,  you  must  be  pre- 
sent, and  when  the  judge  inquires  of  the  prisoner, 
what  he  has  to  say  why  sentence  of  death  should  not 
be  pronounced  against  him?    if  there   be  any  such 
reason,  be  careful  that  it  be  supplied. 

XIV.  "  The  sentence  having  been  passed,  the  death 
warrant  issues — your  application  for  a  pardon  has  been 


IxXXvi  BIOGRAPHICAL    MEMOIR. 

refused,  the  drop  falls — and  then,  and  not  till  then, 
your  duties  are  done. 

"  To  conclude  : — the  condition  of  an  advocate  for  a 
defendant,  in  a  capital  case,  may  be  aptly  compared  to 
that  of  a  commander  of  a  ship  in  a  storm ;  the  cordage 
snaps,  the  masts  go  by  the  board,  the  bulwarks  are 
carried  away,  the  hull  springs  a  leak — every  depend- 
ence from  time  to  time  fails,  and  ruin  appears  to  be 
inevitable;  but  still,  amidst  the  ( wreck  of  matter,' 
sustained  by  the  immortal  mind,  with  a  resolved  will, 
the  gallant  commander  stands  by  his  helm  to  the  last, 
determined  either  to  steer  his  shattered  vessel  into 
port,  or  to  perish  gloriously  in  the  faithful  discharge  of 
his  duty." 


At  the  April  Sessions  of  the  Circuit  Court  of  the 
United  States,  a  case  of  absorbing  and  terrific  interest 
was  brought  to  trial — it  was  a  prosecution  against 
William  Holmes,  for  the  murder  of  Francis  Askin,  and 
arose  out  of  the  following  circumstances  :  The  Ameri- 
can ship,  William  Brown,  left  Liverpool  on  the  13th  of 
March,  1841,  bound  for  Philadelphia.  She  had  on 
board  seventeen  of  a  crew,  and  sixty-four  passengers, 
Scotch  and  Irish  emigrants. 

About  ten  o'clock  of  the  night  of  the  19th  of  April, 
when  distant  two  hundred  and  fifty  miles  south-east  of 

•/ 

Cape  Race,  the  vessel  struck  an  iceberg  and  filled  so 
rapidly,  that  it  was  evident  she  must  soon  go  down. 


BIOGRAPHICAL    MEMOIR.  IxXXVU 

The  long-boat  and  jolly-boat  were  lowered ;  the  cap- 
tain, second  mate,  seven  of  the  crew,  and  one  passen- 
ger, got  into  the  jolly-boat;  the  first  mate,  eight 
seamen,  of  whom  the  prisoner  was  one,  and  thirty-two 
passengers,  got  indiscriminately  into  the  long-boat;  the 
remaining  thirty-one  passengers  were  obliged  to  remain 
on  board  the  ship.  In  an  hour  from  the  time  when 
the  ship  struck  she  went  down,  carrying  with  her 
every  person,  who  had  not  escaped  to  one  or  other  of 
the  boats.  On  the  following  morning,  the  captain,  in 
parting  company  with  the  long-boat,  gave  its  crew 
directions  to  obey  all  the  orders  of  the  mate,  as  they 
would  obey  his,  (the  captain's,)  which  they  promised 
should  be  done.  The  long-boat,  however,  leaked,  and 
all  on  board  were  in  great  jeopardy.  The  gunwale 
was  within  from  five  to  twelve  inches  of  the  water, 
and  was  supposed  to  be  too  unmanageable  to  be  saved ; 
in  a  moderate  blow  she  would  have  been  swamped 
very  quickly.  The  people  were  all  crowded  together 
like  sheep  in  a  pen,  and  the  least  irregularity  in  the 
stowage  would  have  capsized  the  boat;  and  as  was 
sworn,  if  she  had  struck  any  piece  of  ice,  she  would 
have  inevitably  gone  down ;  at  the  best,  her  chances 
of  living  were  much  against  her.  Notwithstanding  all 
this,  she  did  survive  until  ten  o'clock  on  Thursday 
night,  the  crew  rowing  by  turns,  and  the  passengers 
bailing.  On  Tuesday  morning  it  began  to  rain,  and 
continued  till  night ;  at  night  the  wind  freshened,  the 


BIOGRAPHICAL    MEMOIR. 

sea  grew  heavier,  and  splashed  over  the  boat's  bow; 
pieces  of  ice  still  floated  around,  and  during  the  day 
icebergs  had  been  seen.  At  length  the  mate  exclaimed, 
"  Help  me,  God !  men,  you  must  go  to  work,  or  we 
shall  all  perish !"  About  ten  o'clock  on  Tuesday,  the 
prisoner  and  the  rest  of  the  crew  began  to  throw  over 
some  of  the  passengers,  and  did  not  cease  until  they 
had  thrown  over  fourteen  male  passengers :  among 
them  was  Askin,  to  whom  this  indictment  related. 
Holmes  was  one  of  the  persons  who  assisted  in  throw- 
ing the  passengers  over.  He  was  a  Finn  by  birth, 
had  followed  the  sea  from  youth,  and  his  frame  and 
countenance  were  models  of  decision  and  strength. 
He  had  been  the  last  man  of  the  crew  to  leave  the 
sinking  ship ;  his  efforts  to  save  the  passengers  at  the 
time  the  ship  struck,  had  been  conspicuous,  self-forget- 
ful, and  most  generous.  He  was  a  most  skilful  and 
obedient  sailor,  kind  and  obliging  in  every  respect  to 
the  passengers  and  crew;  he  finally  became  the  only 
one  whose  energies  and  hopes  were  not  prostrated; 
and  it  was  through  his  means  that  the  remnant  of  the 
crew  and  passengers  were  saved.  The  case  was  con* 
ducted  for  the  United  States  by  Mr.  Meredith,  Mr. 
Dallas,  and  Mr.  Hopkinson;  the  defence,  by  David 
Paul  Brown,  Mr.  Hazlehurst  and  Mr.  Armstrong.  Our 
space  does  not  allow  us  to  go  into  the  minutiae  of  the 
case,  or  a  detailed  account  of  the  argument  of  the 
counsel.  The  trial  was  one  of  great  excitement,  and 


BIOGRAPHICAL    MEMOIR. 

the  court  room  was  crowded  for  near  a  week  with, 
much  of  the  beauty,  fashion,  and  intelligence  of  the 
city.  We  have  given  the  general  outline,  as  introduc- 
tory to  an  extract  from  the  speech  of  Mr.  Brown  in 
his  defence,  chiefly  drawn  from  Wallace's  Reports  of 
the  Circuit  Court  of  the  United  States : 

*  *  *  "  This  case  should  be  tried  in  a  long-boat,  sunk  down  to 
its  very  gunwale,  with  forty-one  half-naked,  starved,  and  shivering 
wretches  j  the  boat  leaking  from  below — filling  from  above ;  a  hun- 
dred leagues  from  land ;  at  midnight ;  surrounded  by  ice ;  unman- 
ageable from  its  load,  and  subject  to  certain  destruction  from  a 
change  of  the  most  changeable  of  the  elements — the  winds  and  the 
waves.     To  these,  superadd  the  horrors  of  famine,  and  the  reckless- 
ness of  despair,  madness,  and  all  the  prospects,  past  utterance,  of 
this  unutterable  condition.     Fairly  to  sit  in  judgment  on  the  pri- 
soner, we  should,  then,  be  actually  translated  to  his  situation.     It 
was  a  conjuncture  which  no  fancy  can  image.     Terror  had  assumed 
the  throne  of  reason,  and  passion  had  become  judgment.     Are  the 
United  States  to  come  here  now,  a  year  after  the  events,  when  it  is 
impossible  to  estimate  the  elements  which  combined  to  make  the 
risk,  or  to  say  to  what  extent  the  jeopardy  was  imminent — are  they, 
with  square,  rule  and  compass,  deliberately  to  measure  this  boat,  in 
this  room ;  to  weigh  these  passengers ;  call  in  philosophers ;  discuss 
specific  gravities;  calculate  by  the  tables  of  a  life-insurance  com- 
pany the  chances  of  life ;  and  because  they,  these  judges,  find  that, 
by  their  calculation,  this  unfortunate  boat's  crew  might  have  had  the 
thousandth  part  of  one  poor  chance  to  escape,  to  condemn  this  pri- 
soner to  chains  and  a  dungeon,  for  what  he  did  in  the  terror  and 
darkness  of  that  dark  and  terrible  night?     Such  a  mode  of  testing 
men's  acts  and  motives,  is  monstrous ! 

VOL.  I. — 7 


xc  BIOGRAPHICAL    MEMOIR. 

"We  contend,  therefore,  that  what  is  honestly  and  reasonably 
believed  to  be  certain  death,  will  justify  self-defence  in  the  degree 
requisite  for  excuse.  According  to  Dr.  Rutherford,  (Inst.  of  Nat. 
Law,  book  I,  chap.  16,)  'this  law' — i.  e.,  the  law  of  nature — 'can- 
not be  supposed  to  oblige  a  man  to  expose  his  life  to  such  dangers  as 
may  be  guarded  against,  and  to  wait  till  the  danger  is  just  coming 
upon  him,  before  it  allows  him  to  secure  himself.'  In  other  words, 
he  need  not  wait  till  the  certainty  of  the  danger  has  been  proved, 
past  doubt,  by  its  result.  Yet  this  is  the  doctrine  of  the  prosecu- 
tion. They  ask  us  to  wait  until  the  boat  has  sunk ;  we  may  then 
make  an  effort  to  prevent  her  from  sinking.  They  tell  us  to  wait 
till  all  are  drowned ;  we  may  then  make  endeavors  to  save  a  part. 
They  command  us  to  stand  still  till  we  are  all  lost,  past  possibility 
of  redemption,  and  then  we  may  rescue  as  many  as  can  be  saved  ! 
'  Where  the  danger  is  instantaneous,  the  mind  is  too  much  disturbed,' 
says  Rutherford,  in  a  passage  heretofore  cited,  '  to  deliberate  upon 
the  method  of  providing  for  one's  own  safety,  with  the  least  hurt  to 
an  aggressor.'  The  same  author  then  proceeds :  '  I  see  not,  there- 
fore, any  want  of  benevolence,  which  can  be  reasonably  charged 
upon  a  man  in  these  circumstances,  if  he  takes  the  most  obvious  way 
of  preserving  himself,  though  perhaps,  some  other  method  might 
have  been  found,  and  which  would  have  preserved  him  as  effectu- 
ally, and  have  produced  less  hurt  to  the  aggressor,  if  he  had  been 
calm  enough,  and  had  been  allowed  time  enough  to  deliberate  about 
it-'  (Rutherford,  Inst.  of  Nat.  Law,  book  I.,  chapters  16,  §  5.)  Nor 
is  this  the  language  of  approved  text-writers  alone.  The  doctrine 
has  Lthe  solemnity  of  judicial  establishment.  In  Grainger  v.  The 
State,  (5th  Yerger's  Rep.  p.  459,)  the  Supreme  Court  of  Tennessee 
deliberately  adjudge,  that '  if  a  man,  though  in  no  great  danger  of 
serious  bodily  harm,  through  fear,  alarm,  or  cowardice,  kill  another, 
under  the  impression  that  great  bodily  injury  is  about  to  be  inflicted 
on  him,  it  is  neither  manslaughter  nor  murder,  but  self-defence.'  'It 


BIOGRAPHICAL    MEMOIR. 


XC1 


is  a  different  thing,'  say  the  Supreme  Court  of  the  United  States,  in 
the  Mariana  Flora,  Ho  sit  in  judgment  upon  the  case,  after  full  legal 
investigations,  aided  by  the  regular  evidence  of  all  parties,  and  to 
draw  conclusions  at  sea,  with  very  imperfect  means  of  ascertaining 
facts  and  principles,  which  ought  to  direct  the  judgment;'  (llth 
Wheaton's  Rep.,  p.  51.)  The  decision  in  the  case  just  cited,  carried 
out  this  principle  into  practice ;  as  the  case  of  Le  Louis,  decided  by 
Sir  William  Scott,  had  done  before,  (2nd  Dodson's  Admiralty  Rep., 
p.  264.) 

"  The  counsel  cited  Lord  Bacon,  likewise,  (works  by  Montague, 
vol.  13th,  p.  160  :  London,  1831 ;)  and  4th  Blackstone's  Com.,  p. 
160.  But  the  prospect  of  sinking  was  not  imaginary;  it  was  well 
founded.  It  is  not  to  be  supposed  that  Holmes,  who,  from  infancy, 
had  been  a  child  of  the  ocean,  was  causelessly  alarmed ;  and  there 
being  no  pretence  of  animosity,  but  the  contrary,  we  must  infer  that 
the  peril  was  extreme.  As  regards  the  two  men  cast  over  on  Wed- 
nesday, the  presumption  is,  that  they  were  either  frozen  or  freezing 
to  death.  There  being  at  this  time  no  prospect  of  relief,  the  act  is 
deprived  of  its  barbarity.  The  evidence  is,  that  the  two  men  were 
1  very  stiff  with  cold.' 

"  Besides,  this  indictment  is  in  regard  to  Askin  alone.  There  is 
no  evidence  of  inhumanity  on  Tuesday  night,  when  this  throwing 
over  began ;  though  it  is  possible  enough,  that  having  proceeded  so 
far  in  the  work  of  horror,  the  feelings  of  the  crew  became  at  last  so 
disordered,  as  to  become  unnatural.  [The  learned  counsel  then 
examined  the  evidence,  in  order  to  show  the  extremity  of  the 
danger.] 

"  Counsel  say  that  lots  are  the  law  of  the  ocean.  Lots  in  cases 
of  famine,  where  means  of  subsistence  are  wanting  for  all  the  crew, 
is  what  the  history  of  maritime  disaster  records ;  but  who  has  ever 
heard  of  casting  lots  at  midnight,  in  a  sinking  boat,  in  the  midst  of 
darkness,  of  rain,  of  terror,  and  of  confusion  ?  To  cast  lots  when 


BIOGRAPHICAL    MEMOIR. 

all  are  going  down,  to  decide  who  shall  be  spared ;  to  cast  lots  when 
the  question  is,  whether  any  can  be  saved  ?  is  a  plan  easy  to  sug- 
gest— rather  difficult  to  put  in  practice.  The  danger  was  instanta- 
neous— '  a  case,'  says  Rutherford,  (Inst.  of  Nat.  Law,  book  I.,  chap. 
16,  §  5,)  '  where  the  mind  is  too  much  disturbed  to  deliberate ;'  and 
where,  if  it  were  '  more  calm,'  there  is  no  time  for  deliberation.  The 
sailors  adopted  the  only  principle  of  selection  which  was  possible  in 
an  emergency  like  theirs ;  a  principle  more  humane  than  lots.  Man 
and  wife  were  not  torn  asunder ;  and  the  women  were  all  preserved. 
Lots  would  have  rendered  impossible  this  clear  dictate  of  humanity. 
"  But  again  :  the  crew  either  were  in  their  ordinary  and  original 
state  of  subordination  to  their  officers,  or  they  were  in  a  state  of 
nature.  If  in  the  former  state,  they  were  excusable  in  law,  for 
having  obeyed  the  order  of  the  mate ;  an  order  twice  imperatively 
given.  Independent  of  the  mate's  general  authority  in  the  captain's 
absence,  the  captain  had  pointedly  directed  the  crew  to  obey  all  the 
mate's  orders  as  they  would  his,  (the  captain's,)  and  the  crew  had 
promised  to  do  so. 

"  It  imports  not  to  declare,  that  a  crew  is  not  bound  to  obey  an 
unlawful  order ;  for  to  say  that  this  order  was  unlawful,  is  to  pos- 
tulate what  remains  to  be  proved.  Who  is  to  judge  of  the  unlaw- 
fulness? The  circumstances  were  peculiar.  The  occasion  was 
emergent;  without  precedent  or  parallel.  The  lawfulness  of  the 
order,  is  the  very  question  we  are  disputing ;  a  question  about  which 
the  whole  community  has  been  agitated,  and  is  still  divided ;  the 
discussion  of  which  crowds  this  room  with  auditors  past  former 
example ;  a  question  which  this  court,  with  all  its  resources,  is  now 
engaged  in  considering — as  such  a  question  demands  to  be  consi- 
dered— most  deliberately,  most  anxiously,  most  cautiously.  It  is 
no  part  of  a  sailor's  duty  to  moralize  and  to  speculate,  in  such  a 
moment  as  this  was,  upon  the  orders  of  his  superior  officers.  The 
commander  of  a  ship,  like  the  commander  of  an  army,  '  gives  des- 


BIOGRAPHICAL    MEMOIR. 

perate  commands.'  He  requires  instantaneous  obedience.  The 
sailor,  like  the  soldier,  obeys  by  instinct.  In  the  memorable,  immor- 
tal words  of  Carnot,  when  he  surrendered  Antwerp,  in  obedience  to 
a  command  which  his  pride,  his  patriotism,  and  his  views  of  policy 
all  combined  to  oppose  :  '  The  armed  force  is  essentially  obedient ; 
it  acts,  but  never  deliberates.'  The  greatest  man  of  the  French 
Revolution  did  here  but  define,  with  the  precision  of  the  algebraist, 
what  he  conceived  with  the  comprehension  of  a  statesman ;  and  his 
answer  was  justification  with  every  soldier  in  Europe !  How  far 
the  principle  was  felt  by  this  crew,  let  us  witness  the  case  of  this 
very  mate,  and  of  some  of  these  very  sailors,  who,  by  the 
captain's  order,  left  the  jolly-boat,  which  had  ten  persons,  for 
the  long-boat,  with  more  than  four  times  that  number.  They 
all  regarded  this,  as  going  into  the  jaws  of  death;  yet,  not  a 
murmur !  It  is  a  well-known  fact,  that  in  no  marine  on  the  ocean 
is  obedience  to  orders  so  habitual  and  so  implicit,  as  in  our  own. 
The  prisoner  had  been  always  distinguished  by  obedience.  Whether 
the  mate,  if  on  trial  here,  would  be  found  innocent,  is  a  question 
which  we  need  not  decide.  That  question  is  a  different  one  from 
the  guilt  or  innocence  of  the  prisoner,  and  one  more  difficult. 

"  But  if  the  whole  company  were  reduced  to  a  state  of  nature, 
then  the  sailors  were  bound  to  no  duty,  not  mutual  to  the  passen- 
gers. The  contract  of  the  shipping  articles  had  become  dissolved 
by  an  unforeseen  and  overwhelming  necessity.  The  sailor  was  no 
longer  a  sailor,  but  a  drowning  man.  Having  fairly  done  his  duty 
to  the  last  extremity,  he  was  not  to  lose  the  rights  of  a  human 
being,  because  he  wore  a  roundabout  instead  of  a  frock-coat.  "We 
do  not  seek  authorities  for  such  doctrine.  The  instinct  of  these 
men's  hearts  is  our  authority;  the  best  authority.  Whoever  opposes 
it,  must  be  wrong ;  for  he  opposes  human  nature.  All  the  con- 
templated conditions ;  all  the  contemplated  possibilities  of  the  voyage 
were  ended.  The  parties,  sailors  and  passengers,  were  in  a  new 


XC1V  BIOGRAPHICAL    MEMOIR. 

state.  All  persons  on  board  the  vessel  became  equal ;  all  became 
their  own  law-givers;  for  artificial  distinctions  cease  to  prevail,  when 
we  are  reduced  to  the  equality  of  nature.  Every  man  on  board  had 
a  right  to  make  law  with  his  own  right  hand ;  and  the  law  which 
did  prevail  on  that  awful  night,  having  been  the  law  of  necessity 
and  the  law  of  nature,  too,  it  is  the  law  which  will  be  upheld  by 
this  court,  to  the  liberation  of  this  prisoner." 


Upon  the  trial  of  the  case  of  the  State  against 
Cranmer,  for  homicide,  Mr.  Brown  introduced  one  of 
those  simple,  and  yet  powerful  figures,  for  which  his 
style  is  so  remarkable.  The  defendant,  who  was  a 
captain  of  a  vessel,  was  assailed  while  in  port,  by  a 
body  of  Schuylkill  rangers,  "and  threatened  to  be  de- 
prived of  his  command;  seizing  a  handspike,  he  in- 
flicted a  terrible  blow  upon  the  head  of  the  ringleader, 
which,  in  the  language  of  one  of  the  witnesses, 
" crushed  his  skull  like  an  egg-shell"  In  the  defence, 
upon  this  portion  of  the  case,  the  advocate,  in  the 
highest  pitch  of  excitement  exclaimed  : — 

"  The  general,  at  the  head  of  his  army;  the  king  upon  his  throne, 
is  not  more  absolute  than  the  commander  of  his  vessel — from  a 
shallop  to  a  seventy-four.  What,  then,  would  you  have  had  this 
man  to  do — what  weapon  should  he  have  used  ?  "While  surrounded 
by  a  gang  of  reckless,  ruthless  rascals,  bent  upon  outrage  and  upon 
blood,  was  he  right  to  maintain  his  post  ?  to  vindicate  his  authority 
by  commensurate  means — or  would  you  have  had  him  rush  to  the 
hen-coop  for  a  feather,  to  sweep  these  ruffians  from  his  deckl" 


BIOGRAPHICAL    MEMOIR.  xcy 

In  the  year  1835,  a  case  of  the  •  Commonwealth 
against  Starg,  was  tried — it  was  for  murder. 

The  death  was  clearly  proved,  attended  by  circum- 
stances indicating  malice,  and  no  inconsiderable  delibe- 
ration. The  only  deficiency  in  the  proof  was  in  regard 
to  the  person  by  whom  the  offence  was  perpetrated. 
After  all  the  other  testimony  was  closed,  the  Hospital 
physician  was  called.  Mr.  Brown,  who  was  waiting 
anxiously  the  denouement,  and  who  saw  clearly  that 
the  identity  of  the  prisoner  was  the  only  thing  to  be 
feared,  promptly  demanded  what  the  doctor. was  to 
prove  ?  "  Dying  declarations,"  was  the  immediate 
reply.  "  Before  we  come  to  that,"  said  Mr.  Brown, 
"  I  have  something  to  say;  I  am  prepared  to  prove 
that  the  deceased  was  an  atheist — an  avowed  infidel ! 
who  denied  a  future  state  of  rewards  and  punish- 
ments— who  denied  the  truth  of  the  Holy  Bible,  and 
declared  it  to  be  a  romance ;  and  who  disbelieved  in 
the  existence  of  the  Almighty."  This  proof  was- 
accordingly  made,  and  it  resulted  in  the  exclusion  of 
the  declarations  and  the  acquittal  of  the  defendant. 
Upon  the  argument  upon  this  question,  Mr.  Brown 
contended  that  dying  declarations  were  admissible 
only,  when  they  were  founded  on  the  consciousness 
of,  and  approach  to,  the  judgment  seat  of  God.  The 
solemnity  of  that  moment  being  equivalent  to  an 
oath — nay,  more  than  equivalent  to  an  oath,  for  no 
exparte  oath  could  possibly  be  received. 


xcvj  BIOGRAPHICAL    MEMOIR. 

"  But  how,"  said  the  counsel,  "  is  this  principle  available,  when  a  man 
lives  as  a  beast  and  dies  as  a  beast  ?  looking  to  no  hereafter.  Such  a  man, 
if  living,  could  not  be  allowed  to  be  a  witness ;  he  would  not  be  permit- 
ted to  contaminate  the  Book  of  Eternal  Life,  with  his  unhallowed  and 
sacrilegious  lips.  If,  then,  he  could  not  be  sworn — acknowledging  no 
obligation  that  binds  him  to  the  truth — how  can  his  declarations, 
living  or  dying,  be  received  in  a  court  of  justice,  in  a  case  involving 
human  life  ?  An  avowed  or  admitted  infidel,  is  divested  of  all  his 
franchises ;  the  Constitution  tolerates  all  religions,  but  does  not  tole- 
rate NO  RELIGION — does  not  sanction  blasphemy  or  a  blasphemer. 
No  man  can  hold  a  public  office,  who  is  an  infidel ;  from  the  Presi- 
dent of  the  United  States  down  to  a  tipstaff  in  this  court,  every 
officer  is  compelled  to  be  sworn.  No  atheist  can  be  sworn,  and 
therefore  no  atheist  can  hold  an  office,  however  high  or  low.  There 
is  no  injustice  in  this — the  man  who  denies  his  God,  should  be  pre- 
pared to  be  denied  by  his  fellow-man." 

Such  was  the  general  course  of  the  argument — the 
result  is  known.  A  few  months  after  this,  a  minister 
of  the  Baptist  church  called  upon  Mr.  Brown,  and 
imparted  to  him  the  following  gratifying  intelligence, 
tending  to  show,  that  while  saving  the  neck  of  one 
man,  he  had  probably  saved  the  soul  of  another. 
"  Last  week,"  said  the  clerical  gentleman,  "  a  person 
applied  to  be  received  into  our  church — our  rules 
require  that  prior  to  such  reception,  the  candidate  or 
applicant  shall  relate  his  experience,  as  it  is  called — 
that  is  to  say,  communicate — the  course  of  his  life — 
his  faults  and  his  omissions.  <I  have,'  said  the  candi- 
date, '  until  some  few  months  ago,  lived  a  very  irregu- 


BIOGRAPHICAL    MEMOIR. 

lar  life,  and  endeavored  to  relieve  myself  from  its 
penalties,  by  arguing  myself  into  the  notion,  that 
there  was  no  hereafter  to  fear — no  Almighty  power 
to  punish ;  in  short,  I  became  a  confirmed  infidel.  It 
happened,  however,  that  I  was  present  at  the  trial  of 
William  Starg,  for  homicide,  and  upon  that  occasion 
the  perils  of  infidelity  were  so  forcibly  portrayed  by 
the  counsel,  Mr.  Brown,  as  connected  with  this  world 
and  the  next,  that  my  eyes  were  at  once  so  opened  to 
my  lost  condition,  as  to  bring  about  an  almost  instan- 
taneous and  entire  reform.  From  that  period  I  date 
my  conversion,  to  a  thorough  faith  in  the  sublime 
truths  of  the  gospel.' "  "  This  communication,"  said 
Mr.  Brown,  "  is  most  gratifying,  indeed.  I  trust  the 
convert  was  sincere.  But  there  were  two  positions  in 
my  argument ;  one  was,  that  infidelity  kept  a  man  out 
of  heaven,  and  the  other  was,  that  it  kept  him  out  of 
office ;  to  which  consideration  do  you  suppose  the  con- 
version was  most  to  be  imputed  ?  If  he  was  not  an 
office-seeker,  he  no  doubt  was  a  Christian." 

In  the  year  1843,  the  case  of  "  Farkin"  for  murder, 
was  tried  in  the  Court  of  Oyer  and  Terminer,  of  Phila- 
delphia County.  For  the  history  of  this  case,  we  are 
indebted  to  the  following  sketch  from  the  pen  of  one 
of  Mr.  Brown's  opponents  in  the  trial.  We  give  it 
the  more  at  length,  as  its  extraordinary  features  will 
doubtless  render  it  interesting  and  instructive,  not  only 
to  the  legal  profession,  but  to  the  general  reader. 


XCviii  BIOGRAPHICAL    MEMOIR. 

Among  the  very  many  and  important  causes,  in- 
volving life  and  liberty,  which  it  has  fallen  to  the  lot 
of  Mr.  Brown  to  carry  triumphantly  through  the 
ordeal  of  a  court  of  criminal  law,  perhaps  no  single  one 
was  more  remarkable,  than  the  case  of  the  Common- 
wealth of  Pennsylvania  against  John  Parkin,  tried  for 
murder  in  the  Court  of  Oyer  and  Terminer  of  Philadel- 
phia, in  April,  1843.  If  the  "quiddam  honorarium" 
now-a-days  in  the  profession,  has  become  almost  the 
invariable  condition  precedent  for  the  appearance  in 
the  judicial  forum  of  professional  talent  of  the  first 
order,  to  Mr.  Brown's  high  honor  be  it  spoken,  that 
the  destitute  and  oppressed  ever  find  in  him,  in  the 
midst  of  lucrative  and  important  business,  a  kind  and 
generous  protector.  Commanding  business  of  the 
highest  class,  he  will  turn  aside  from  it,  with  cheerful- 
ness and  kindness,  and  exercise  his  fine  abilities,  in 
the  trial  of  a  criminal  cause,  where,  believing  that  the 
law  opens  an  honorable  defence  for  his  client,  he  can 
hope  for  no  other  reward  than  that  derived  from  the 
consciousness  of  relieving  a  fellow-being  in  distress. 
It  is  this  generosity  of  heart,  moved  by  the  impulse  of 
genius,  which  has  ever  characterized  those  most  emi- 
nent for  forensic  eloquence.  Mr.  Brown's  career,  like 
that  of  every  distinguished  advocate,  abundantly 
proves,  how  rich  in  principle  are  the  causes  of  the 
lowly  and  the  poor,  and  how  the  creative  powers  of 
genius  are  able  to  call  forth  from  them  images  and 


BIOGRAPHICAL    MEMOIR.  xcjx 

even  truths,  which  never  present  themselves  to  the 
mind  of  ordinary  power. 

The  case  of  John  Farkin  was  one  of  that  class.  He 
was  a  poor  Irishman,  who  had  emigrated  to  the  United 
States  in  1841,  and  for  two  years  had  picked  up  a 
precarious  subsistence  as  an  itinerant  clock  vender. 
On  a  pleasant  Tuesday  afternoon,  in  April,  1843,  there 
was  a  happy  little  family  collected  around  an  humble 
meal,  at  a  house  in  the  neighborhood  of  Fairmount,  in 
the  county  of  Philadelphia.  James  Lehaman,  his  wife, 
and  five  young  children,  with  a  female  relative,  were 
assembled  at  the  supper-table,  and  the  work  of  the  day 
was  over.  A  knock  at  the  door  roused  their  atten- 
tion, and  a  man,  subsequently,  and  soon  after  to  make 
that  circle  one  of  mourning  and  death,  presented  him- 
self. He  was  ragged  and  dirty,  but,  beyond  this,  there 
was  nothing  remarkable  in  his  appearance  or  manner. 
He  inquired  if  the  family  had  any  clocks  to  mend,  and 
an  agreement  was  made  that  he  was  to  repair  a  clock, 
and  if  it  went  well  for  four  days,  was  to  receive  his 
pay,  and,  for  that  purpose  was  to  call  on  the  fourth 
day.  These  preliminaries  being  settled,  he  was  taken 
to  an  upper  room  by  James  Lehaman,  where  he  com- 
menced his  work,  and  Lehaman  returned  to  his  family. 
In  a  short  time  Farkin  returned,  saying  he  had  mended 
the  clock.  He  picked  up  his  tools,  and  asked  permis- 
sion to  board  in  the  family,  as  he  was  very  poor,  and 
had  no  home.  This  was  objected  to  by  the  wife, 


c  BIOGRAPHICAL    MEMOIR. 

although  with  entire  consideration  for  the  feelings  of 
Farkin ;  the  reason  given  being  that  the  house  was 
small,  and  the  family  large.  He  complained  of  having 
lost  his  knife;  it  was  looked  for;  but  he  stopped 
further  search,  remarking,  that  he  had  found  it  in  his 
pocket.  He  then  told  James  Lehaman  to  be  at  home 
on  Saturday  at  four  o'clock,  and  he  would  call  to  re- 
ceive his  money.  It  was  thus,  and  within  the  brief 
period  of  about  a  quarter  of  an  hour,  that  Farkin  first 
came  into  and  left  the  house  of  his  subsequent  victims. 
An  open  common  stood  opposite  the  house  of  Leha- 
man. As  soon  as  Farkin  reached  it,  he  was  seen  to 
return,  and,  approaching,  he  entered,  without  knocking, 
the  house  he  had  just  left.  His  manner  was  com- 
posed, but  determined,  and  the  following  dialogue  took 
place  between  himself  and  Lehaman  : 

Farkin. — "I  want  my  money,  or  I'll  break  the 
clock." 

Lehaman. — "  This  was  not  our  bargain.  Where  do 
you  keep  your  establishment,  that,  if  the  clock  is 
spoiled,  I  can  find  you  ?" 

Parkin. — "  I  keep  my  establishment  in  my  pocket, 
sir." 

Farkin  became  enraged  at  the  last  remark  of  Leha- 
man, or  acted  on  his  determination  to  carry  into  exe- 
cution his  threat  of  breaking  the  clock,  unless  he  was 
paid ;  for  he  instantly  rushed  towards  Lehaman,  who 
was  standing  near  the  staircase,  pushed  him  violently 


BIOGRAPHICAL    MEMOIR.  ci 

aside,  and  proceeded  to  go  up  stairs.  Lelmman  fol- 
lowed— endeavored  to  stop  him — got  on  the  stairs 
first ;  his  wife  followed,  and  Farkin  came  up  last.  As 
he  ascended,  he  was  seen  to  take  his  knife  out  of  his 
pocket,  open,  and  hide  it  up  his  sleeve.  Jane  Leha- 
man  (the  wife)  held  her  arm  against  the  wall  of  the 
staircase,  to  impede  the  progress  of  Farkin;  but  he 
pressed  forward,  and  putting  his  head  under  her  arm, 
stabbed  her  husband,  who  fell  instantly  dead  on  the 
staircase.  The  deceased's  eldest  son,  a  little  boy  not 
more  than  nine  years  old,  seeing  his  parents  in  that 
situation,  not  aware  that  the  spirit  of  one  had  already 
fled,  ran  up  to  the  murderer  with  a  broom-stick  in  his 
little  hands,  to  aid  in  their  defence.  It  was  the  spirit 
of  infantine  heroism,  kindled  by  the  instinct  of  filial 
love,  that  moved  the  heart  of  the  brave  boy  to  that 
unequal  contest.  The  murderer  turned,  and  looked 
at  him,  with  the  remark,  "  Eh,  you've  come  to  help 
your  father;"  and  seizing  him  with  one  hand,  he  stabbed 
him  with  the  other,  and  the  noble  child  fell  bleeding 
to  the  floor.  Fortunately,  that  stab  proved  not  to  be 
fatal.  The  female  relative  now  approached  him,  to 
aid  in  rescue  of  the  child ;  and  at  her,  too,  he  plunged 
his  murderous  weapon.  She  escaped  him,  and  hid  up 
the  chimney.  Farkin  next  rushed,  knife  in  hand,  at 
the  wife  of  the  deceased,  but  she  fled  through  a  back 
door.  He  then  hastily  turned  towards  the  front  door, 
opened  it,  returned  to  pick  up  his  hat,  and  then  left 


cjj  BIOGRAPHICAL    MEMOIR. 

the  house.  Jane  Lehaman  instantly  followed  :  death 
was  in  her  household,  terror  in  her  countenance,  and 
agony  in  her  heart.  She  followed  now, — far  more  an 
object  of  observation  than  the  unhappy  murderer ;  for 
he  walked  calmly  and  deliberately  along  the  pave- 
ment, stopped  at  the  corner  of  a  street,  and  the  woman 
approached  him.  No  words  of  repentance,  no  explana- 
tion escaped  him.  He  said  sternly  to  her,  "  Come  one 
step  further,  and  I'll  treat  you  as  I've  treated  the 
rest."  So  calm  was  he,  that  the  neighbors,  when  first 
told  by  her  of  what  had  happened,  could  not  believe 
that  he  was  the  man  who  had  done  such  dreadful 
deeds. 

But  the  cry  of  murder  had  gone  forth,  the  widow 
charged  him  boldly,  and  blood  was  on  his  face.     He 
ran,  and  the  hue  and  cry  was  raised  upon  him.     He 
ran  fearfully;  his  knife  was  open  in  his  hand;  he 
struck  at  one,  and  another,  who  tried  to  arrest  him, 
and  finally,  seeing  a  man  making  mortar  in  the  street, 
rushed  at  him,  and  endeavored  to  seize  his  mortar 
hod.     At  this  point  he  was  arrested;   he   instantly 
threw  his  knife  away,  and  said,  "  I  give  up."     After 
his  arrest,  he  said  on  his  way  to  prison,  "  I  pray  God 
he  is  dead ;  it  was  a  fair  contract ;"  and  while  in  pri- 
son, "I  didn't  give  him  half  as  much  as  I  ought  to  have 
given  him."     Such  is  a  brief  synopsis  of  the  facts. 
The  indictment  was  soon  presented,  and  the  prisoner 
arraigned. 


BIOGRAPHICAL    MEMOIR.  ciJi 

Mr.  Brown  was  sent  for. 

By  the  Court. — "  Mr.  Brown,  this  prisoner  is  charged  with  mur- 
der; the  officers  of  the  government  inform  us  that  the  case  is  one  of 
great  importance ;  the  prisoner  is  unable  to  employ  counsel,  and  we 
desire  to  know,  if  you  will  represent  him  in  the  cause  ?" 

]\Ir.  Brown. — "  May  it  please  your  Honors,  I  am  much  pressed 
with  professional  engagements,  but  the  peril  of  the  prisoner  and  the 
suggestion  of  the  court  induce  me  to  put  them  aside,  and  to  under- 
take the  duty  the  court  is  pleased  to  assign  me." 

Junior  counsel  is  associated  with  him,  two  days  are 
given  to  prepare  the  cause,  and  on  Friday,  the  24th  of 
May,  it  is  called  up.  Mr.  Brown,  during  no  part  of 
the  trial,  is  more  remarkable,  or  happy  than  in  the 
preliminary  skirmishing  which  precedes  the  main  duty 
of  grappling  with  his  adversary  in  argument." 

It  is  not  the  intention  of  this  notice  to  enter  upon 
the  details  of  the  case  of  Farkin,  as  they  appeared  in 
evidence,  under  the  plea  of  "insanity,"  which  was 
entered  by  his  counsel.  The  case  was  selected  as 
illustrative  of  the  ardor  and  devotion  with  which  Mr. 
Brown  clings  to  the  cause  of  a  destitute  client,  who 
confides  to  him  in  the  hour  of  peril,  and  in  jeopardy  of 
life ;  and  how  little  the  dark  features  of  the  darkest 
criminal  cause  appal  him.  The  court  sat  from  ten 
o'clock,  Friday  morning,  until  near  midnight  of  the 
same  day ;  and  from  ten,  on  Saturday  morning,  until 
half-past  two  on  Sunday  morning;  when  the  prose- 


cjv  BIOGRAPHICAL    MEMOIR. 

cuting  officer  made  his  closing  speech,  and  the  judge 
charged  the  jury. 

Mr.  Brown,  as  usual,  took  the  exclusive  examina- 
tion of  the  witnesses.  The  government  had  not  known, 
or  omitted  to  prove  the  fact  of  the  prisoner's  assailing 
with  his  knife  every  one  whom  he  met  in  his  flight. 

Mr.  Brown  brought  it  out  on  cross-examination. 
The  tyros  of  the  bar  smiled  and  whispered  to  each 
other,  signifying,  that  with  all  his  eminence  as  an  ad- 
vocate, and  his  special  reputation  in  the  examination 
of  witnesses,  he  had  missed  it  in  eliciting  these  start- 
ling and  unwelcome  facts.  Not  so  with  the  counsel. 
He  boldly  insisted  upon  exhibiting  the  whole  of  that 
bloody  drama.  Every  scene  in  it  he  depicted  with 
fidelity  and  power.  If  the  facts  of  his  defence  made 
out  insanity  to  the  satisfaction  of  the  jury,  then  every 
homicidal  act  by  the  prisoner  was  but  the  stronger 
proof  of  the  theory  of  the  defence.  If  the  plea  of 
insanity  failed,  the  counsel  sagaciously  determined  that 
he  could  deduce  from  all  this  most  unusual  and  fero- 
cious conduct  of  the  prisoner,  a  strong  argument,  to 
show  that  he  had  committed  the  homicide  under  a 
violent  burst  and  tempest  of  passion,  rather  than  de- 
liberate malignity  of  heart.  The  case  was  so  despe- 
rate, no  boldness  of  interrogation  could  make  it  worse. 

It  was  shown  that  the  prisoner  was  a  poor  outcast 
from  happiness  and  home.  He  had  deserted,  or  had 
been  deserted  by,  a  wife  and  children.  Those  who 


BIOGRAPHICAL    MEMOIR.  cy 

had  known  him  in  earlier  life  in  his  own  country,  tes- 
tified that  he  had  always  been  an  isolated,  desolate 
person,  moody  in  temper,  uncertain  in  habits  and  pur- 
suits. 

Many  idle,  extravagant  things,  done  and  said  by 
him,  as  bearing  upon  the  state  of  his  mind,  were  in- 
troduced into  the  defence,  especially  (and  but  under 
one  view,  it  was  clearly  irrelevant  evidence,)  his  decla- 
rations and  conduct  after  his  imprisonment — one  of 
the  prison  keepers  testifying  that  the  prisoner  told 
him,  "  it  was  a  fair  bargain,  to  be  paid  when  the  clock 
was  done;  and  then  he  would'nt  pay  me  for  four  days. 
I  went  to  go  up  stairs,  to  break  the  clock,  or  put  it  out 
of  that ;  he  stopped  me — threw  an  otter  skin  at  me, 
and  I  then  thrust  a  screw-driver  into  him." 

It  was  on  this  theory  that  Mr.  Brown  based  an  in- 
genious and  powerful  appeal  to  the  jury.  He  rose  to 
speak  at  about  ten  o'clock  on  Saturday  night ;  it  was 
past  midnight  when  he  sat  down.  His  speech  on  that 
occasion  was  one  of  great  power,  and  infinitely  honor- 
able to  him,  as  a  man  of  kindly  and  generous  feelings, 
as  well  as  professional  merits.  Never  having  seen  the 
desolate  prisoner  before — never,  perhaps,  to  see  him 
again,  his  exertions  in  his  behalf  are  most  favorably 
remembered  by  all  who  were  conversant  with  the  facts 
at  the  time ;  the  opening  of  his  argument  for  the  de- 
fence, (which  in  substance  ran  thus,)  will  never  be 
forgotten  by  those  present. 

VOL.  i. — 8 


BIOGRAPHICAL    MEMOIR. 

devotion  and  abilities,  may  be  said  to  have  been  saved 
the  life  of  the  unhappy  prisoner;  for  certainly,  no 
ordinary  advocate  could  have  turned  aside  the  current 
which  was  bearing  him  towards  death. 

The  case  of  Morgan  Hinchman  against  sixteen  de- 
fendants, persons  all  of  great  respectability,  and  some 
of  them  of  wealth,  and  influence,  and  position,  which 
was  tried  in  the  Supreme  Court  of  Pennsylvania,  in 
March,  1844,  though  a  civil  case,  was  also  one  of  a 

/  /  tJ  f 

very  remarkable  character,  and  called  out,  with  dis- 
tinguished success,  the  peculiar  forensic  talents  of  Mr. 
Brown.  The  case  excited  great  attention;  it  com- 
menced on  the  ninth  of  March  and  continued  until  the 
seventh  of  April.  The  facts  of  the  case  were  very 
original ;  a  crowded  auditory  thronged  the  court-room 
from  the  beginning  to  the  end  of  the  trial ;  the  first 
talent  of  the  bar  was  engaged,  and  the  result  of  the 
verdict  proved  abundantly  that  the  defendants  had 
cause  to  approach  the  investigation  with  anxiety  and 
ample  preparation.  As  it  is  designed  to  give  some 
extracts  from  Mr.  Brown's  address,  to  throw  before  the 
reader  a  correct  impression  of  his  style  and  matter,  a 
brief  statement  of  the  case  may  be  necessary. 

Morgan  Hinchman  was  a  young  man  of  respectable 
connexions,  a  member  of  the  Society  of  Friends,  re- 
siding with  a  wife  and  a  young  family  of  children,  in 
a  neighboring  county,  apparently  prosperous  and 
happy.  On  the  evening  of  the  fifth  of  January,  1847, 


BIOGRAPHICAL    MEMOIR.  cix 

he  left  his  farm  to  attend  the  market  in  Philadelphia. 
Before  his  departure  he  arranged  many  little  domestic 
affairs  with  regularity  and  care,  and  when  in  Phila- 
delphia, after  disposing  of  his  produce,  attended  to 
some  business  relating  to  a  loan  of  money,  by  a  mort- 
gage on  his  farm.  On  the  morning  of  the  seventh,  the 
transactions  occurred  which  gave  rise  to  the  subse- 
quent suit.  At  the  same  hour  of  that  morning,  the 
hour  previously  fixed  upon  by  Morgan  Hinchman  for 
concluding  the  negotiation  about  the  mortgage,  several 
of  the  defendants  assembled  at  the  same  place  and 
arrested  Morgan  Hinchman,  after  informing  him  that 
they  were  about  to  take  him  to  the  Frankford  Lunatic 
Asylum.  Without  repeating  the  details  of  the  case, 
it  is  sufficient  to  state,  that  in  pursuance  of  their  plans 
previously  laid,  and  spite  of  the  resistance  of  the 
alleged  lunatic,  he  was  carried  to  the  Asylum  and 
restrained  of  his  liberty  for  several  months,  as  an 
insane  person.  It  was  for  a  conspiracy,  accompanied 
by  the  overt  act  of  his  imprisonment,  that  an  action 
for  damages  was  brought,  the  parties  charged  being 
not  only  those  actively  combined  in  the  arrest,  but 
others,  by  whom  it  was  alleged,  a  less  active,  but 
equally  culpable  part,  was  taken  in  the  proceeding 
against  the  plaintiff.  It  is  just  to  this  statement  of 
the  case  to  remark,  that  the  defendants,  one  and  all, 
denied,  in  every  way  and  form,  the  charge  against 
them.  They  alleged  that  Morgan  Hinchman  was 


cx  BIOGRAPHICAL    MEMOIR. 

taken  to  the  Asylum  at  the  request  of  his  wife  and 
mother,  upon  the  certificate  of  a  very  competent  medi- 
cal adviser,  and  that  he  was,  at  the  time  of  his  arrest, 
and  had  been  for  a  long  time  previous,  a  lunatic. 
It  was  admitted  that  he  was  apparently  quiet, 
intelligent  and  rational;  but  that  he  was,  for  the 
most  part,  and  with  reference  to  his  domestic 
relations,  uniformly  of  unsound  mind;  that  on  one 
occasion  he  had  beaten  his  own  mother  in  his  orchard, 
while  she  was  his  guest;  that  he  was  always  very 
restless  and  unhappy  in  his  family ;  that  his  worldly 
affairs  were  in  confusion;  and  particularly  that  his 
wife's  property,  of  which  he  had  obtained  the  control, 
was  disappearing  under  his  management.  It  was  fur- 
ther alleged  that  he  had  been  declared  a  lunatic,  by  an 
inquisition  of  lunacy,  and  that  all  the  acts  complained 
of  by  the  plaintiff  were  authorised  by  law,  and  intended 
for  his  benefit. 

That  the  issue  involved  may  be  fairly  presented  on 
both  sides,  it  must  be  stated,  that  many  of  these  alle- 
gations by  the  defendants  were  denied,  others,  though 
in  part  admitted,  were  brought  forward  in  connection 
with  other  facts,  which  gave  to  the  whole  case  features 
of  aggravation.  It  was  a  circumstance  in  the  plain- 
tiff's case,  that  one  of  his  children  had  died  during  his 
imprisonment,  and  that  he  had  always  shown  skill  in 
the  management  of  his  affairs.  The  plaintiff's  coun- 
sel, in  a  word,  contended  that  there  was  a  malicious 


CXI 

intention  to  confine  Morgan  Hinchman,  and  take  his 
property  out  of  his  own  control,  in  order  to  gratify 
either  a  lust  for  power  or  the  vindictive  feelings  of 
professed  friends.  Much  strong  and  conflicting  evi- 
dence was  offered  on  each  side.  Three  counsel  pre- 
ceded Mr.  Brown,  in  speeches  of  great  power;  and 
on  Good  Friday  he  commenced  as  follows : 

"  Upon  this  day,  Gentlemen  of  the  Jury,  this  HOLY  day,  while  the 
great  masses  of  the  Christian  community  are  devoutly  engaged  in 
a  public  manifestation  of  pious  gratitude  for  the  priceless  and  free 
sacrifice,  which  redeemed  the  fallen  family  of  man  from  the  mise- 
ries of  eternal  death,  it  is  a  melancholy  and  painful  duty  to  be 
compelled  to  force  upon  your  attention,  the  persecution  and  oppres- 
sion, the  cruelty  and  barbarity,  practised,  or  alleged  to  be  practised, 
(for  I  take  nothing  for  granted,)  by  a  body  of  professing  Christians, 
lovers  of  peace,  and  followers  of  a  meek  and  lowly  Saviour,  against 
an  unoifending  fellow  man. 

"  My  learned  friend,  though  professional  adversary,  has  ventured, 
in  the  close  of  his  remarks  to  appeal  to  you,  and  to  attempt  to  enlist 
your  sympathies  in  behalf  of  the  defendants  in  this  case,  closely 
connected  together  as  they  have  been,  from  the  first  to  the  last,  as 
a  solid  phalanx,  in  an  unsparing  opposition  to  Morgan  Hinchman. 
Instead  of  casting  an  eye  of  pity  or  commiseration  upon  the  help- 
less condition  of  the  plaintiff,  upon  his  destitute  and  disgraced  con- 
dition, all  his  humanity  seems  to  be  absorbed  by  a  sympathetic 
regard  for  those  whom  he  professionally  represents,  and  who  are  the 
actual  offenders. 

"When  Pilate — and  it  is  an  apt  illustration  upon  the  present 
occasion — meanly  yielded  to  the  clamors  of  the  multitude,  and 
washing  his  hands  in  their  presence,  surrendered  the  Saviour  of 


BIOGRAPHICAL    MEMOIR. 

mankind  to  an  unholy  and  infuriate  combination,  consoling  himself 
by  exclaiming,  'I  am  innocent  of  the  wrongs  of  this  just  person,' 
he  adopted,  by  anticipation,  some  portion  of  the  argument  resorted 
to  by  this  defence.  He  only  stood  by,  forsooth,  and  did  nothing ! 
He  was  innocent  of  the  blood  of  the  accused !  But  let  me  tell  you 
now — and  it  will  be  a  subject  of  elaborate  descant  hereafter — let  me 
tell  you  now,  that  that  man,  however  elevated  or  respectable,  who 
stands  by  patiently,  and  acquiesces  in  a  wrong  that  is  about  to  be, 
or  has  been  committed,  imparts  to  the  wrong-doer  the  aid  and  sup- 
port of  his  presence,  and  thereby  participates  in  the  offence.  Although, 
like  Pilate,  he  may  console  himself  with  the  operations  of  washing 
off  external  guilt,  he  shares  in  that  evil,  shares  in  that  crime,  which 
he  neither  endeavored  to  prevent,  nor  was  disposed  to  resist  or 
redress.  That  is  my  doctrine,  and  we  shall  soon  see  how  it  will 
abide  the  test,  when  I  come  to  apply  it  in  requisite  connection  with 
the  different  portions  of  this  case,  in^which  that  point  of  inquiry  is 
involved." 

After  this  appropriate  reference  to  the  day,  in  con- 
nection with  the  case,  and  an  allusion  to  some  of  the 
incidents  of  the  trial,  Mr.  Brown  proceeded  to  the 
court: 

"  May  it  please  your  Honor,  I  never  had  more  occasion  to  enter- 
tain confidence  in  a  judicial  officer,  than  I  have  now.  I  never  felt 
more  distinctly,  or  more  deeply,  the  necessity  for  entire  reliance 
upon  the  integrity  of  a  judge.  I  think,  during  the  progress  of  this 
cause,  your  Honor's  mind  may  have  wavered,  as  is  proper  it  should 
do,  in  relation  to  certain  legal  points ;  yet  I  have  not  observed,  and 
I  am  certain,  in  relation  to  the  discharge  of  your  duties,  I  never 
shall  observe,  the  slightest  vacillation  or  unsteadiness,  in  regard  to 


BIOGRAPHICAL    MEMOIR.  cxiij 

the  immutable  principles  of  justice.  It  will  be  my  duty,  as  far  as 
within  my  power,  to  relieve  you  of  any  doubts  hitherto  entertained, 
and  if  I  do  not  settle,  beyond  question,  the  entire  fallacy  of  the 
whole  doctrine  of  the  defendants'  counsel,  and  show  that  at  most  it 
is  a  mere  castle  in  the  air,  resting  upon  no  other  foundation  than 
fancy  or  error,  then  I  will  submit,  as  a  philosopher  ought,  and  calmly 
encounter  the  consequences." 

Mr.  Brown  is  never  a  very  long  speaker — on  this 
point  he  remarks : 

"  I  am  not,  allow  me  to  say,  one  of  that  class  of  advocates — 
though  I  speak  in  no  disparagement  of  others — who  seem  to  con- 
ceive the  length  and  strength  of  a  speech  to  be  synonymous ;  I  shall, 
therefore,  if  I  have  measured  myself  rightly,  occupy  comparatively 
but  a  short  time  in  discharging  the  duties  that  have  fallen  to  my 
allotment.  If  my  argument  be  to  the  purpose,  it  cannot  be  too 
short,  and  if  it  be  not  appropriate  to  the  cause,  and  calculated  to 
aid  you  in  your  deliberations,  and  secure  your  arrival  at  just  results, 
it  must  certainly  be  too  long." 

From  the  previous  great  respectability  of  the  parties 
to  this  action,  and  the  influence  and  position  which 
many  of  them  enjoyed,  it  was  argued  with  great  confi- 
dence, and  some  force,  that  the  plaintiff  had  the  weight 
of  probabilities  against  him,  upon  the  question  of  mali- 
cious intentions,  in  the  excellent  previous  character  of 
the  defendants.  To  these  points  Mr.  Brown,  before 
entering  the  heart  of  the  case,  alluded  in  the  following 
forcible  strain : 

"  This,  as  my  learned  friend  has  justly  told  you,  is  a  most  im- 


CXJV  BIOGRAPHICAL    MEMOIR. 

portant  case.  Not,  as  you  will  perceive  at  a  single  glance,  with 
reference  to  the  stupendous  magnitude  of  the  pecuniary  amount 
involved ;  not  that  it  embraces  any  considerations  directly  affecting 
human  life,  but  because  it  is  unparalleled  by  any  proceeding  recorded 
in  the  annals  of  American  jurisprudence;  and  because  it  compre- 
hends those  momentous  principles,  without  the  sanctity,  protection 
and  vindication  of  which,  even  life  itself  would  be  a  burthen,  and 
the  world  a  waste.  Let  me  conjure  you  to  think  well  of  this — don't 
suppose  that  the  question  here  is  merely,  whether  forty  thousand 
dollars  are  to  pass  from  the  pockets  and  coffers  of  the  wealthy  and 
respectable,  into  the  pockets  and  coffers  of  the  poor  and  destitute. 
I  scorn  to  put  this  case  on  any  such  footing.  I  am  not  here  as  a 
pauper,  to  beg ;  and  if  I  were,  the  last  men  to  whom  I  would  apply 
to  relieve  the  wants  or  the  necessities  of  the  plaintiff,  would  be  bis 
heartless  persecutors  and  oppressors.  I  am  here  for  justice;  answer — 
shall  I  have  it  ?  That  is  the  question.  I  don't  come  to  steal  it !  I 
don't  intend — borrowing  an  example  from  the  defendants — to  take 
it  by  force.  I  don't  come  with  my  corporal's  guard,  or  armed  myr- 
midons, for  the  purpose  of  wresting  it  from  you.  I  come  here  to 
demand  it ;  here,  in  this  court  of  justice ;  and  I  present  to  you  the 
basis  upon  which  I  build  my  claim.  My  learned  friend  has  said — 
and  whatever  he  says  he  says  well,  and  skilfully  too — that  if  you 
give  a  verdict  for  the  plaintiff,  you  deeply  affect  these  defendants  in 
the  estimation  of  the  community.  These  respectable  men !  I  dare 
say,  you  will  suppose  it  rather  strange  to  call  them  so,  in  connection 
with  this  case ;  but  whether  they  are  respectable,  powerful,  wealthy, 
or  otherwise,  matters  nothing  to  me,  and  should  matter  nothing  to 
you.  Those  are  not  the  vital  considerations  here.  I  don't  ask  them 
to  share  their  wealth,  unless  we  are  entitled  to  it,  as  an  indemnity 
for  our  wrongs.  I  invoke  no  prejudices.  I  don't  desire  to  oppress 
them ;  on  the  contrary,  the  whole  philosophy  of  this  case  is  reared 
upon  a  very  different  doctrine. 


BIOGRAPHICAL    MEMOIR.  cxv 

"  If,  instead  of  a  legitimate  defence,  they  talk  of  respectability, 
I  give  my  answer  in  the  words  of  Samuel  Beans,  the  venerable  indi- 
vidual who  has  been  so  much  censured  here,  because  he  ventured  to 
encounter  this  self-created  autocracy,  if  I  may  call  it  so.  I  answer 
them  in  his  simple,  though  [powerful  language :  '  Your  characters 
must  be  very  good,  if  they  will  resist  the  flood  and  current  of  proof 
in  regard  to  this  transaction,  which  sets  against  and  overwhelms 
them.' 

"  Why,  these  sage,  grave  men,  attempt  to  make  character  a  mere 
marketable  commodity,  not  that  priceless  jewel  that  my  learned 
friend  has  spoken  of.  It  is  to  be  a  mere  shield  and  protection  for 
iniquity  and  outrage ;  for  that  is  what  I  understand  to  be  the  prac- 
tical end  and  application  of  the  argument.  I  agree  that  character 
is  everything;  I  agree  that  the  human  frame  is  but  a  tawdry,  empty, 
worthless  casket,  when  that  jewel's  gone.  But  where  shall  this  doc- 
trine land  us  ?  That's  the  point.  Had  Lord  Bacon  no  character  ? 
'  The  wisest,  brightest,  meanest  of  mankind  !'  Had  he  no  intellectual, 
no  moral,  no  national,  no  universal  character?  broad  and  expansive 
as  nature  itself;  yet  all  this  did  not  save  him,  when  he  had  comit- 
ted  an  atrocious  wrong,  and  sullied  the  pure  ermine — the  judicial 
and  national  glory,  of  his  country.  Was  not  Dr.  Dodd  a  man  of 
high  character?  Yet  all  his  character  could  not  save  him  from  the 
gallows !  Nay,  if  you  will  pardon  me — it  is  pertinent  to  the  time, 
and  I  introduce  it  with  becoming  reverence  for  its  association — was 
not  Judas,  one  of  the  disciples,  a  man  of  character,  until  he  traitor- 
ously betrayed  his  master  with  a  kiss,  and  basely  sold  the  Redeemer 
of  the  world,  for  thirty  pieces  ? 

"  Character,  so  far  from  being  a  defence,  so  far  from  being  matter 
of  vindication  or  protection,  where  the  testimony  is  calculated  to 
enforce  the  claims  of  the  plaintiff,  is  matter  of  aggravation,  disgrace 
and  confusion.  What  is  there — while  I  admit  and  maintain  the 
elevated  position  in  which  character  places  man — what  is  there3  I 


cxvj  BIOGRAPHICAL    MEMOIR. 

say,  that  degrades"  him,  even^below  the  lowest  depth  of  odium  and 
contempt,  more  than  its  willing  and  wanton  sacrifice  ?  Why,  was 
not  Lucifer — surnamed^the  Morning  Star,  before  his  fall — one  of  the 
brightest  spirits  among  the  angelic  hosts  ?  He  then  stood  the  highest 
and  the  purest ;  and  for  that  plain  reason,  now  stands  the  lowest  and 
the  blackest.  I  wish  this  subject'of  character  distinctly  understood  ;  it 
is  a  sort  of  mawkish  sentimentality,  too  often  introduced  to  lend 
grace  to  a  desperate  defence.  It  is  like  a  moon-beam  on  a  thunder 
cloud,  making  the  gloom  more  dreadful.  I  repeat  it,  I  am  disposed 
to  pay  as  warm  a  tribute  to  the  regard  in  which  reputation  is  held, 
as  any  man.  But  I  have  no  notion,  no  idea,  sir,  that  gentlemen 
like  these,  or  any  other  persons,  should  imagine  that  there  is  any 
personal  hostility  on  my  part  towards  them,  because  I  take  leave  to 
speak  of  them  as  they  deserve." 

No  professional  mind,  especially  one  conversant  with 
the  practice  and  principles  of  criminal  jurisprudence, 
will  fail  to  appreciate  this  just  reference  to  the  evi- 
dence of  character,  when  offered  as  a  substantial  part 
of  a  defence  at  law. 

Reference  was  made  by  the  opposite  counsel  to  the 
Frankford  Asylum,  to  the  beauty  of  its  external,  and 
the  comfort  of  its  internal  arrangements.  On  this,  as 
a  minor  point  of  the  case,  the  speaker  proceeded  as 
follows : 

"  Let  us  turn  to  the  beautiful  picture  prefixed  to  the  accompany- 
ing history,  written  by  Dr. ,  upon  the  moderate  compensation 

of  six  hundred  dollars  a  year,  for  one  or  two  flying  visits  a  week. 
That  history  has  been  read  here  by  the  counsel,  almost  in  extenso  j 


BIOGRAPHICAL    MEMOIR.  CXVU 

and  certainly  'ad  nauseam;'  he  tells  you  it  is  a  perfect  paradise; — 
don't  let  him  ensnare  you  with  'mere  springes  to  catch  woodcock.' 
Would  you  not  now  suppose,  from  this  poetic,  and  romantic,  and 
rapturous  description  of  the  Frankford  Asylum,  that  it  was  a  perfect 
Arcadia  ?     See  how  well  it  appears  in  the  engraving  and  in  print ! 
Only  behold  the  terraces,  the  lawn,  the  gravel- walks,  the  flower-gar- 
dens, roses,  deer-parks,  and  everything  of  the  most  attractive  and 
alluring  character !     And  all  these  luxurious  indulgences,  says  our 
learned  friend,  are  supervised  and  secured,  without  even  the  equiva- 
lent of  a  salary.     Amazing  philanthropy !     How  is  this  ?     It  seems 
very  wonderful !     But  that  wonder  disappears,  when  you  are  told 
that  it  is  not  the  fact.     Philip  Garret,  Dr.  Worthington,  Dr.  Evans, 
and  a  whole  retinue  of  keepers,  are  all  abundantly  paid.     I  don't 
mention  this  as  a  matter  of  complaint,  but  in  refutation  of  their 
pretensions,  which  have  been  introduced  as  a  part  of  the  defence. 
And  I  beg  leave  to  say,  with  all  respect  and  deference  to  the  learned 
counsel,  that  it  was  an  abuse  of  the  patience  and  time  of  the  court 
and  jury,  to  press  so  elaborately  upon  us,  the  very  equivocal  and 
somewhat  meretricious  attractions  of  a  private  mad-house.     I  wish, 
when  you  can  be  brought  to  think  yourselves  insane — though,  accord- 
ing to  the  Doctor's  notions,  you  will  never  be  sane  until  then — you 
would  take  up  your  lodgings  in  this  most  magnificent  boarding-house; 
making,  however,  the  special  provision,  that  you  shall  have  the 
benefit  of  the  Habeas  Corpus  Act,  in  case  it  so  turn  out  that  you 
should  be  awakened  from  your  slumbers  every  hour  of  the  night,  or 
nearly  beaten  to  death  by  some  of  its  civil  and  courteous  inmates. 
"Why,  Gentlemen  of  the  Jury,  this  outward  parade  of  comfort 
is  only  calculated  to  sharpen  the  agony  of  the  sufferer.     Do  you — 
can  you  suppose,  that  the  free  bird  that  has  been  accustomed  to 
scale  the  blue  vault  of  heaven,  when  entrapped  and  consigned  to  a 
costly  cage,  is  consoled  by  the  consideration,  if  I  may  ascribe  consi- 
deration to  a  bird — rather  let  me  say  its  instinctive  emotional  feel- 


CXViii  BIOGRAPHICAL    MEMOIR. 

ings  ?  (to  borrow  something  from  the  doctors,) — Do  you  suppose,  I 
say,  it  is  comforted  by  the  fact  of  the  cage  being  of  gold ;  or,  will 
it  not  rather  beat  its  fluttering  little  life  out  against  those  golden 
bars,  that  shut  it  in  from  liberty?  It  is  useless,  therefore,  nay  worse 
than  useless,  to  resort  to  these  empty  lures.  I  don't  care  if  this 
Asylum  were  made  of  *  one  entire  and  perfect  chrysolite.'  What 
does  it  come  to?  What  is  all  that  to  the  famished  soul?  the  de- 
graded and  debased  spirit,  the  humiliating  sense  of  a  two-fold  bond- 
age— bondage  of  the  body,  attended  with  imputed  bondage,  at  least, 
of  the  immortal  mind." 

With  one  other  extract,  relating  to  the  examination 
of  the  plaintiff  before  the  inquisition  of  lunacy;  and 
which  produced,  on  its  delivery,  a  general  outburst  of 
applause  from  the  assembled  multitude,  we  shall  close 
our  notice  of  this  remarkable  case — thus  it  runs  : 

"  They  call  it  an  INQUISITION.  How  appropriate,  though  how 
terrible  the  name.  MERCIFUL  HEAYEN  !  Let  Spain  no  longer  be 
abused — no  longer  revile  that  benighted  region  for  her  folly  and 
fanaticism — no  longer  reproach  her  for  her  chains,  her  racks  and 
her  tortures,  and  all  the  accursed  machinery  of  human  wretched- 
edness  and  human  degradation — since  here,  in  this  boasted  land  of 
equality — here,  in  this  hospitable  asylum  from  persecution  and 
oppression — here,  in  this  thrice  glorious  and  sacred  sanctuary  of 
enlightened  liberty  and  equal  rights — if  principles  like  these  are  to 
be  tolerated,  advocated,  or  allowed,  every  doctor  is  a  spy — every 
lawyer  an  inquisitor — every  superintendent  a  jailor — every  citizen 
a  victim,  and  every  domicil  a  dungeon."  (Loud  applause,  which 
his  Honor  could  scarcely  restrain.) 

Mr.  Brown  is  of  the  middle  height,  compactly  made, 


BIOGRAPHICAL    MEMOIR. 

with  a  full,  round  chest;  his  forehead  is  high  and 
broad;  eyes  black;  mouth  large,  and  filled  with  the 
finest  teeth  imaginable ;  a  gift  almost  essential  to  an 
orator.  His  voice  is  of  great  compass  :  it  ranges  from 
the  lowest  notes  of  the  flute  to  the  highest  blast  of  the 
bugle.  He  has  an  admirable  temper.  No  one  ever 
saw  him  lose  his  self-possession,  even  in  moments  of 
the  greatest  anxiety,  tumult  and  consternation;  nor 
can  it  be  discovered  from  his  deportment  during  a  trial, 
whether  it  is  prosperous  or  perilous.  If  there  be  any 
difference,  it  consists  in  this — that  he  steers  his  bark 
more  boldly  in  a  rough  sea.  We  have  often  seen  him, 
in  forensic  conflicts,  involving  considerations  of  life  and 
death — where  even  the  by-standers  seemed  terrified  and 
appalled — calm  and  collected,  and  firm  as  a  rock,  amid 
the  wild  and  wasteful  ocean. 

In  rising  to  address  the  court  and  jury  upon  any 
matter  of  deep  concernment,  he  almost  invariably  be- 
comes pale,  and  continues  so  until  the  reaction  in  the 
system  takes  place;  then  his  eyes  sparkle  or  melt; 
his  voice  varies  according  to  the  theme ;  all  his  features 
are  in  full  play,  and  the  most  accomplished  actor,  in 
his  attempts  at  dramatic  effect,  never  was  more  true 
to  nature. 

Mr.  Brown  is  said  to  quote  a  great  deal  from  Shaks- 
peare;  this,  we  think,  is  a  mistake.  That  he  is  a 
devotee  to  the  immortal  bard,  no  one  can  doubt,  but 
still  he  draws  from  him  less,  than  many  members  of  the 


cxx  BIOGRAPHICAL    MEMOIR. 

bar,  and  much  less  than  he  quotes  other  authors.  No 
man,  it  is  true,  is  more  familiar  with  the  "myriad- 
minded"  poet.  The  reason  assigned  for  it  is  this  :  Mr. 
Brown's  parents  were  Quakers,  and  by  them,  the  read- 
ing of  Shakspeare  by  their  son,  was  strictly  prohibited ; 
nevertheless,  though  it  does  not  speak  well  for  his  obe- 
dience, he  sought  "  the  sealed  book,"  and  at  the  early 
age  of  ten  years  made  himself  master  of  its  treasury, 
and  built  upon  this  best  of  all  models,  the  entire  struc- 
ture of  his  language.  And  now,  as  Chief  Justice 
Gibson  once  said,  "He  does'nt  quote  Shakspeare,  but 
speaks  Shakspeare." 

Mr.  Brown  is  not  a  flippant  speaker,  nor  what  is 
generally  called  a  fluent  speaker.  He  is  an  eloquent 
speaker.  His  manner,  his  matter,  his  language,  all 
cohere  together,  and  are  all  directed  to  the  enforce- 
ment of  his  argument.  In  his  management  of  a  cause, 
he  is  like  no  one  else,  and  although  he  has  many  imi- 
tators, the  copies  have  not  the  slightest  resemblance 
to  the  original;  the  one  springing  from  nature,  the 
other  from  art.  In  his  most  rapid  declamation  he 
never  halts  or  stumbles — never  drops  one -word,  and 
picks  up  another — never  falls  into  false  grammar  or 
incorrect  pronunciation — never,  in  quoting,  departs 
from  his  text,  but  blends  the  most  scrupulous  exact- 
ness with  the  most  overwhelming  energy.  Blessed 
with  a  clear  and  distinct  memory,  he  rarely  resorts  to 
notes,  either  for  evidence  or  arrangement ;  but  having, 


BIOGRAPHICAL    MEMOIR.  cxxj 

as  it  were,  everything  in  his  own  mind,  his  great  effort 
seems  to  be  to  transfuse  it  into  the  minds  of  others. 

Notwithstanding  these  admirable  qualities,  some  of 
his  notions  are  peculiar.  Great  men,  with  few  excep- 
tions, are  said  to  be  indifferent  to  mere  externals — to 
despise  costly  or  gaudy  apparel,  and  the  display  of 
tinsel  and  finery.  Not  so,  however,  with  the  subject 
of  this  memorial.  He  is,  perhaps,  too  much  devoted 
to  dress,  though  apparently  regardless  of  it ;  and  in- 
stead of  attempting  to  excuse,  he  vindicates  his  pro- 
pensity to  display.  Upon  a  recent  occasion,  when 
rebuked  by  an  adversary  who  was  of  an  opposite 
taste,  he  promptly  replied,  that  "he  had  never  known 
a  man  to  speak  well  in  clumsy  boots,  nor  to  have  a 
clean  mind,  with  dirty  hands  and  face;  but  that  he 
had  known  many  a  fop  that  was  not  a  fool,  and  many 
a  sloven  that  was  not  a  SOLOMON."  "A  becoming 
decency  of  exterior,"  said  he,  "  may  not  be  necessary 
for  ourselves,  but  it  is  agreeable  to  others ;  and  while 
it  may  render  a  fool  more  contemptible,  serves  to  em- 
bellish inherent  worth.  It  is  like  the  polish  of  the 
diamond,  taking  something,  perhaps,  from  its  weight, 
but  adding  much  more  to  its  brilliancy  and  attraction." 

In  endurance,  and  what  may  be  called  the  alacrity 
and  facility  of  labor,  as  well  as  the  ability  to  make  sud- 
den transitions  from  one  mental  employment  to  another, 
without  any  signs  of  distress,  he  stands  alone.  We 
have  seen  others  do  this,  but  never  with  so  much  ap- 

VOL.  i. — 9 


CXXii  BIOGRAPHICAL    MEMOIR. 

parent  ease.  Mr.  Brown  has  been  known  repeatedly 
to  be  engaged  upon  trials  going  on  in  four  courts  at  the 
same  time,  and  to  give  the  necessary  attention  to  all, 
and  to  argue  all,  without  confounding  facts  and  names 
of  parties  or  witnesses  in  the  course  of  the  discussion. 
It  is  not  so  remarkable  that  this  should  be  done,  as 
that  it  should  be  so  well  done. 

In  explanation  of  this  faculty,  we  have  seen  in  his 
Diary,  a  passage  from  which  we  have  been  permitted 
to  make  an  extract,  and  which  runs  thus  : 


"I  am  conscious  of  the  ability  to  think  of  what  I  please — to 
abstain  from  thinking  of  what  is  painful  or  disagreeable;  or  to 
avoid  thought  altogether.  The  first  of  these  mental  powers  seems 
to  depend  upon  superiority  of  attention ;  the  second,  upon  concen- 
tration of  attention  upon  one  subject,  which,  while  it  lasts,  necessa- 
rily excludes  all  others ;  and  the  last  is  what  may  be  called  diffu- 
sion of  attention,  which,  while  it  sees  everything,  leaves  no  definite 
or  distinct  impression  upon  the  mind — no  consciousness  of  any  one 
thing,  to  the  exclusion  of  others.  The  last  of  these  faculties,  as 
opposed  to  the  natural  character  of  the  mind,  is  the  most  difficult  of 
attainment,  and  the  most  difficult  to  shake  off,  It  is  for  the  time  a 
mental  dreamy  chaos,  where  every  thing  exists,  but  nothing  plainly 
or  in  order? 


For  the  last  quarter  of  a  century  he  has  been  inces- 
santly employed,  and  spoken  almost  daily ;  and  after 
labors  such  as  we  have  mentioned,  in  the  different 
courts,  he  will  proceed,  without  interval  or  refresh- 


BIOGRAPHICAL    MEMOIR.  CXXiii 

ment,  to  his  three  or  four  arbitrations  or  audits,  and 
finally,  in  the  evening  close  his  toils,  by  delivering  a 
discourse  for  hours  before  some  college  class,  or  lite- 
rary, or  political  association.  Thus  passes  his  life.  It 
is  nearly  closed — and  it  may  be  truly  said,  that  there 
have  been  few  lives  of  greater  labor,  or  greater  plea- 
sure. No  man  has  ever  seen  him  angry  or  discon- 
tented. In  prosperity  and  adversity  he  is  unchanged, 
apparently  unaffected,  and  the  elements  are  so  mixed 
in  him,  that  he  seems  to  take  with  equal  favor,  for- 
tune's buffets  or  rewards. 

A  lawyer's  life,  it  may  be  said,  without  intending 
any  play  upon  words,  is  emphatically  a  life  of  trials. 
He  has  scarcely  any  domestic  existence ;  and  the  more 
extensive  his  business,  the  more  applicable  is  the 
remark.  He  neither  rises  nor  falls  with  political  dy- 
nasties,— shuns  legislative  honors,  and  disdains  official 
dignities ;  he  moves  and  breathes,  and  has  his  being 
almost  solely  amidst  the  crowds  and  clamors  of  diversi- 
fied litigation.  There  he  often  encounters  abilities  of  the 
first  order,  and  sometimes  perhaps  of  the  worst  order. 
There  his  temper  and  his  talents  are  both  daily  and 
hourly  tested.  His  triumphs  and  defeats  are  so  inter- 
woven, or  the  one  follows  the  other  so  closely,  that 
they  almost  lose  their  distinctive  identity,  and  blend 
the  pleasures  and  pains  of  life  so  together,  as  to  render 
it  difficult  to  determine  which  is  the  more  prominent 
and  prevalent.  One  day  is  like  another  in  this — 


CXXiv  BIOGRAPHICAL    MEMOIR. 

that  all  are  busy — all  are  anxious — all  are  made  up  of 
hopes  and  fears,  clouds  and  sunshine ;  and  so  continu- 
ous and  unvaried  is  this  truth,  that  this  uninterrupted 
variety  actually  becomes  monotony,  still  running  as  it 
were,  in  a  circle,  travelling  over  the  same  ground,  and 
knowing  no  end. 


THE  reason  why  there  are  supposed  to  be  so  many 
new  things  in  the  world,  notwithstanding  the  doctrine 
of  Solomon,  that  "there  is  nothing  new  under  the 
sun,"  is,  that  so  much  that  is  old  is  lost  sight  of  or 
forgotten.  When  we  are  told  that  every  thing  that 
existed  in  the  beginning  is,  perhaps  under  new  phases, 
in  existence  still,  and  that  though  the  affinities  of 
matter  be  destroyed,  the  elements  remain,  and  no 
atom  has  been  lost  in  the  various  mutations  of  the 
universe;  what  natural  philosophy  thus  teaches,  we 
implicitly  believe.  But  when  any  thing  in  the  form 
of  a  novelty  presents  itself,  in  moral,  social  or  intel- 
lectual life,  we  are  prone  to  think  that  the  countless 
years  that  have  passed,  never  furnished  its  precedent 
or  parallel.  Weak  and  vain  man !  Those  very  novel- 
ties existed  in  years  "  long  since  numbered  with  those 


cxxvi  INTRODUCTION. 

beyond  the  flood," — and  were  forgotten,  renewed — 
renewed  and  again  forgotten;  and  such  will  continue 
to  be  the  course  of  events  until  time  shall  be  no  more. 

In  order,  therefore,  that  men  while  living  for  the 
present  and  future,  may  be  permanently  instructed  in 
the  lessons  and  experience  of  those  who  have  gone 
before  them,  and  inherit  the  benefit  of  their  example, 
it  is  certainly  commendable,  that  the  old  in  passing  to 
their  heirs  or  successors  their  well  earned  fame  or 
fortune,  should  transmit  to  them  also,  that  knowledge 
of  the  nature  and  character  of  men  and  things,  without 
which  fame  and  fortune  can  neither  be  appreciated  nor 
secured. 

As,  without  the  recollections  of  its  youth,  age  would 
be  debarred  of  its  greatest  pleasures  and  enjoyments — 
so,  without  the  precepts  and  examples  of  age,  youth 
would  be  deprived  of  its  chief  knowledge  and  protec- 
tion— of  the  salutary  guidance  which  the  hard  earned 
experience  of  others  may  have  supplied.  The  memo- 
rials, therefore,  of  men  who,  after  a  life  of  labor  and 
deserved  honor,  have  in  the  fulness  of  time,  "  like  the 
sun,  showing  their  greatest  countenance  in  their  lowest 
estate,"  sunk  into  the  grave,  are  appropriate  and  in- 
structive lessons  to  those  who  are  about  entering  upon 
the  busy  and  thronging  scenes  of  a  tumultuous  and 
precarious  world. 

Every  man  forms  for  himself  his  own  horizon,  and 
he  sees  nothing  but  that  which  is  above  it — but  if  that 


INTRODUCTION.  CXXVii 

which  is  seen  or  known  by  those  of  one  age,  were  trans- 
ferred to  those  of  succeeding  ages,  the  scope  of  man's 
mental  vision  would  be  incalculably  enlarged,  and  thus 
by  avoiding  the  errors  and  faults,  or  emulating  the  wis- 
dom and  virtues  of  the  past ;  the  present,  instead  of 
being  an  age  of  experiment,  would  be  an  age  of  com- 
parative certainty  and  security. 

The  knowledge  of  life  that  forty  years  supply,  even 
with  the  wisest  and  keenest  observer,  is  comparatively 
nothing — still,  when  connected  with  antecedent  and 
subsequent  history,  it  may  impart  valuable  lights  and 
shadows  to  the  picture,  which  the  hand  of  time  im- 
presses upon  life's  canvass.  Nothing  that  relates  to 
man,  in  his  temporal  or  eternal  conditions,  should  be 
indifferent  to  man.  The  experience  of  others  furnishes 
our  cheapest  instruction,  and  to  despise  or  disregard  it, 
often  condemns  us  to  the  heaviest  penalties. 

There  are  few  subjects  more  gratifying  than  family 
traditions.  Ancestry  and  heraldry  derive  all  their  in- 
terest from  the  noble  emotions,  impulses  and  actions 
with  which,  while  we  perpetuate  ourselves,  we  inspire 
our  descendants.  But  how  much  more  instructive  and 
beneficial  must  be  the  record  of  a  large  professional 
family,  consisting  of  the  choice  and  master  spirits  of 
the  era  in  which  they  lived,  when  honestly  handed 
dpwn  to  their  descendants.  How  emulous  must  the 
son  be,  not  only  of  sharing,  but  rivalling  or  even  im- 
proving the  glory  of  his  father.  How  careful  should 


cxxviii 

he  be,  if  he  cannot  increase,  not  to  diminish,  his  inherited 
fame,  hut  to  pass  it  unohscured  and  unimpaired  as  a 
rich  legacy  to  his  issue. 

Nor  is  this  consideration  less  important  to  those  who 
have  no  forefathers'  feet  to  stand  upon.  They  have  at 
least  posterity  to  look  to,  and  like  Napoleon,  they  may 
be  the  founders  of  an  illustrious  race.  Or  like  Banquo 
though  no  kings  themselves,  still  their  children  may  be 
kings.  The  golden  round  is  before  them — the  power 
to  grasp  it  is  theirs,  and  if  they  fail,  the  curse  of  failure 
will  be  theirs.  Nay  not  upon  them  only  will  it  fall, 
but  upon  those  whom  they  represent,  or  who  may  follow 
them.  Remember,  the  Almighty  never  created  a  man 
whom  he  did  not  endow  with  the  ability  to  sustain  him- 
self, and  to  discharge  the  obligations  imposed  upon  him. 
And  remember  also,  in  the  language  of  Richelieu,  "  That 
in  the  lexicon  of  youth,  whom  fate  reserves  for  a  bright 
manhood,  there's  no  such  word  as  FAIL  !" 

"  All  things  are  ready  if  the  mind  be  so." 

This,  as  intimated  in  the  prospectus,  is  the  first 
work  of  the  kind  that  has  been  presented  to  the 
public  in  this  county.  Indeed  there  has  been  no 
publication,  so  far  as  known  to  the  author,  in  any 
country,  that  presents  Forensic  Life  so  minutely 
and  prominently  to  the  reader.  Cicero,  Quintillian, 
Pliny,  and  other  illustrious  ancients,  have  furnished 


INTRODUCTION.  CXxix 

us  with  abundant  instruction  in  regard  to  the  moral, 
intellectual,  literary  and  scientific  qualifications  of 
orators  and  advocates :  Le  Tellier,  Pasquier,  and 
D'Agesseau,  of  the  French  Noblesse  de  la  Robe — 
"  who  were  not  born  to  die" — have  added  largely  to 
the  stock  of  knowledge  derived  from  the  theories  and 
practice  of  antiquity.  The  Lives  of  the  Chief  Jus- 
tices and  Lord  Chancellors  of  England,  by  Lord 
Campbell,  invite  no  special  attention  to  the  Members 
of  the  Bar — their  habits,  their  learning,  or  their  elo- 
quence ;  yet  most,  if  not  all  the  authors  referred  to, 
have  omitted  those  details  of  professional  life  and  those 
personal  delineations  and  sketches,  which  unite  the 
present  with  the  past,  and  tend  more,  perhaps,  than 
any  thing  else,  to  bring  us  into  companionship  with 
the  founders  and  sages  of  the  law,  and  thereby  enable 
us  to  associate  those  who  adorned  the  earlier  systems 
of  Jurisprudence,  with  their  less  venerated  and  dis- 
tinguished successors. 

It  must  not  be  understood,  however,  from  these 
remarks,  that  it  is  my  purpose  to  write  the  biography 
of  those  illustrious  men  to  whom  attention  will  be 
invited.  The  design  is  merely  to  exhibit  general, 
and,  it  is  to  be  feared,  imperfect  outlines  of  their  pro- 
fessional character  and  position. 

The  peculiarities  of  men,  which  are  the  distinc- 
tions between  men,  are  entitled  to  be  noticed ;  be- 
cause, without  them  the  portrait  is  as  flat  as  the 


cxxx  INTRODUCTION. 

canvass,  and  would  scarcely  be  recognized  by  any 
one,  as  a  likeness  or  copy  of  the  original.  Those 
peculiarities  are  not  presented  for  the  imitation  of 
others,  but  may  be  adopted,  approved  or  rejected,  as 
taste  or  judgment  shall  direct.  Plutarch  in  his 
Lives,  and  Baker  and  Hollingshead  in  their  English 
Chronicles,  did  not  deem  it  unworthy  of  their  res- 
pective tasks,  after  a  general  description  of  the 
scenes  through  which  their  heroes  passed,  to  bestow 
some  little  attention  upon  their  persons,  their  man- 
ners, their  habits  and  comparative  merits;  and  we 
therefore,  may  be  pardoned  for  an  occasional  and 
humble  imitation  of  the  example. 

My  business  is  more  with  men  than  things.  The 
speeches  of  any  one  of  those  whom  I  shall  describe, 
would  form  almost  a  professional  library  in  themselves, 
and  of  course  be  inconsistent  with  the  limits  of  this  work, 
but  some  of  the  occasions  upon  which  they  were  made — 
their  character,  and  the  effects  produced  by  them — form 
interesting  and  important  items  in  the  formation  and 
history  of  the  Bar,  which  certainly  ought  not  to  be 
disregarded.  For  they  supply  the  foundation  upon 
which  rests  the  entire  structure  of  our  present 
Forensic  Fame,  and  our  future  professional  Hope. 

This  work  is  designed  chiefly  to  exhibit  the  public 
lives  of  the  members  of  the  Legal  profession, — indeed 
a  Lawyer  in  full  practice  can  scarcely  be  said  to  have 
any  private  life.  The  community  seems  to  form  his 


INTRODUCTION.  CXXXi 

family,  and  amid  the  cares  and  distractions  and  employ- 
ments of  business,  he  has  no  leisure  but  that  which  is 
constrained.  The  members  of  the  Bar  are,  it  is  true, 
admirably  qualified  for  society— they  are  full  of  infor- 
mation and  anecdote;  the  whole  volume  of  human 
nature  seems  to  be  open  to  them — the  delights  of  lite- 
rature and  the  charms  of  science,  are  at  their  command ; 
but  still  it  is  obvious,  that  being  so  perpetually  engaged 
in  their  arduous  professional  pursuits,  it  is  difficult  for 
them  to  throw  off  their  fetters,  and  display  those  intel- 
lectual treasures  which  they  eminently  possess.  The 
intervals  of  leisure  are  brief,  and  brief  as  they  are, 
always  clouded  by  anticipation  of  renewed  toil,  or 
"  sickly'd  o'er  by  the  pale  cast  of  thought,"  or  the  ex- 
haustion of  past  labors  :  So  that  the  sprightliness  and 
buoyancy  of  the  mind  are  essentially  diminished,  if  not 
impaired.  Yet  notwithstanding  this,  it  not  unfrequently 
happens  that,  like  Sampson,  they  break  the  withs  which 
bind  them,  and  resume,  for  a  time,  all  their  native 
activity,  freedom  and  strength. 

Our  purpose  however,  is  not  directed  to  domestic  or 
social,  but  to  professional  Life, — and  even  there,  while 
it  is  the  duty  of  the  historian  to  depict  things  as  they 
are,  it  is  equally  his  duty  to  avoid  any  unnecessary 
encroachment  upon  the  feelings  of  others.  Great  cau- 
tion is  required,  while  noticing  the  departed,  to  avoid 
giving  pain  to  survivors.  This  however,  is  less  to  be 
apprehended  upon  this  subject,  as,  though  the  Bar  and 


CXXXii  INTRODUCTION. 

the  Bench  had  some  peculiarities,  they  had  very  few 
vices.  There  were  no  Tresillians,  or  Wrights,  or 
Kelynges,  or  Pophams  among  them. 

But  if  the  delicacy  be  so  great  in  regard  to  those 
who  are  no  longer  with  us,  what  must  it  be,  in  occa- 
sionally noticing  our  associates — those  whom  we  daily 
meet  in  the  intercourse  of  social,  or  the  arena  of  profes- 
sional life.    Upon  that  subject  all  that  can  be  said  is,  that 
no  animosity  or  envy  shall  be  infused  into  these  sketches 
— but  upon  the  contrary,  our  brethren  shall  be  spoken  of, 
as  they  would  be  spoken  to,  in  a  spirit  of  fraternal  kind- 
ness and  conciliation,  corresponding  with  the  harmony 
and  friendship  by  which  the  intercourse  of  the  Profession 
has  always  been  characterized.     There  are  no  asperi- 
ties, no  jealousies,  no  rivalries  at  the  Bar ;  each  man  is 
apparently  satisfied  in  his  own  sphere,  and  if  he  does 
not  shine  in  direct  radiance,  he  at  least  enjoys  collat- 
eral light.     Towards  the  Judges — the  fathers  of  the 
Bar — there  is  not  only  habitual  respect,  but  a  sort  of 
filial  reverence  entertained,  and  if  at  any  time  it  should 
be  lost  sight  of,  the  cause  will  not  be  found  in  the  wan- 
ton disobedience  of  the  children,  but  in  the  severity  or 
despotism  of  the  parents. 

Having  presented  a  general  view  of  my  design — and 
its  incidental  difficulties — I  may  be  permitted  in  con- 
clusion to  say,  that  my  chief  motive  for  engaging  in  this 
undertaking,  is  the  desire  to  furnish  some  few  memorials 
of  the  legal  profession.  If  this  work  be  not  attempted 


cxxxiii 

now — it  never  will  be.  Every  hour  diminishes  our 
recollections  of  by-gone  days ;  but  a  few  glimpses  re- 
main ;  and  a  few  short  years  will  obliterate  every 
view  and  vestige  of  what,  in  the  passing  and  changing 
pageants  of  life,  has  been  so  interesting  to  us  all. 

If  this  humble  effort  should  accomplish  no  more 
than  to  invite  superior  minds  to  the  prosecution  of  a 
plan  so  imperfectly  commenced,  although  it  is  not  all 
that  I  desire,  it  is  perhaps  more  than  I  have  reason- 
ably the  right  to  expect.  But,  as  to  succeed  where  suc- 
cess cannot  possibly  be  doubtful,  confers  no  honor  on 
any  man, — so  to  fail,  honestly  to  fail,  in  a  just  enterprise 
where  there  is  but  little  chance  of  success,  reflects  no 
disgrace;  but  to  discharge  our  duties  fearlessly  and 
faithfully,  in  the  various  relations  of  life  in  which  we 
may  be  engaged,  is  man's  highest,  and  should  be,  man's 
proudest  praise. 

After  acknowledging  our  grateful  obligation  to  the 
patrons  of  the  "  Forum,"  and  to  all  those  who  have 
contributed  to  enhance  its  interest  and  value,  we 
may  be  allowed  to  say,  that  this  work  is  entirely  pro- 
fessional. That  it  is  not  intended  as  a  finished  specimen 
of  fine  writing  or  literary  taste. — In  these  respects,  no 
one  can  think  less  of  it  than  the  author.  The  short  time 
given  to  its  preparation, — the  business  interruption  to 
which  it  has  been  subjected  in  its  progress,  all  forbid 
the  hope  of  its  meeting  the  entire  approbation  of  those 
for  whom  it  was  principally  designed — we,  however, 


CXXXiv  INTRODUCTION. 

offer  no  other  excuse  for  its  many  defects,  than  the 
assurance  of  our  deep  and  lasting  attachment  to  our 
brethren  of  the  Bar — and  the  "  Conscripts  Fathers"  of 
the  Bench — and  of  our  having  undertaken  the  book  in 
order  that  we  may  all  live  united  in  the  memory  of 
others,  when  our  earthly  connexion  is  at  an  end. 


THE    FORUM. 


CHAPTER    I. 

FORENSIC  ELOQUENCE— ANCIENT  AND  MODERN;  WITH  ILLUSTRATIONS. 

IT  is  obviously  proper,  if  not  necessary,  before  we 
enter  upon  the  subject  of  Ancient  and  Modern  Elo- 
quence, to  bestow  a  hasty  retrospect  upon  the  condi- 
tion of  jurisprudence — if  it  may  so  be  called — in  the 
earlier  ages.  In  doing  this,  we  cannot  but  be  surprised 
at  the  power  and  ascendency  which  Grecian  and  Roman 
oratory  has  always  held  hi  the  estimation  of  the  entire 
world.  This  must  certainly  have  arisen  rather  from 
their  popular  harangues  upon  great  national  ques- 
tions, in  times  of  public  excitement  and  peril,  than 
from  any  forensic  effort,  at  least  so  far  as  from  the 
memorials  of  their  professional  lives,  we  are  enabled  to 
judge. 

The  truth  is,  that  all  those  speeches  which  have  won 


THE    FORUM. 

the  world's  admiration  and  applause,  were  written — 
and  some  of  them  never  delivered,  and  what  is  still 
worse,  chiefly  written  after  the  trial  had  been  con- 
cluded. Neither  Demosthenes  nor  Cicero  ever  pro- 
nounced one  half  of  the  speeches  that  have  been 
handed  down  to  us,  and  which  have  been  the  subjects 
of  eulogy  from  orators,  historians  and  poets,  for  thou- 
sands of  years.  We  judge  rather  of  their  value  from 
the  effects  which  they  are  said  to  have  produced,  and 
from  the  impressions  left  by  our  course  of  classical 
instruction,  to  say  nothing  of  the  reverence  with  which 
the  memory  ever  surrounds  the  tradition  of  departed 
greatness. 

This  system  of  writing  speeches,  which  was  intro- 
duced by  Pericles,  and  especially  recommended  by 
Cicero,  may  cause  them  to  appear  to  more  advantage 
with  posterity,  but  must  have  taken  much  from  their 
effectiveness  upon  their  auditory,  if  the  men  of  those 
days  were  constituted  as  are  those  of  the  present. 
No  man  now,  even  if  he  were  able,  could  venture  to 
imitate  their  example  with  any  hope  of  success.  The 
practice  of  delivering  speeches  previously  written,  is 
with  us  confined  to  tyros  or  neophytes  of  the  pro- 
fession, who  invariably  abandon  it,  as  soon  as  they  are 
relieved  from  the  timidity  inseparable  from  youth  and 
inexperience;  and  the  less  excusable  practice  of  writ- 
ing speeches  that  never  were  delivered,  to  say  the 
least  of  it,  displays  more  vanity  than  honesty. 


FORENSIC    ELOQUENCE.  137 

Few  men  will  agree  with  the  notion  of  Cicero,  that 
written  discourses  are  preferable,  or  more  available, 
than  those  which  are  the  result  of  close  thought,  and 
laborious  and  careful  study;  and  dependent  upon  the 
immediate  action  of  the  mind  and  surrounding  circum- 
stances for  their  dress  and  address.  How  is  it  possible 
that  a  coldly  prepared  speech,  with  an  introduction  (as 
sometimes  happened,)  taken,  perhaps,  for  the  twentieth 
time  from  a  Liber  Exordiarum,  however  able,  can 
exercise  such  a  power  over  a  jury  or  a  popular  assem- 
bly, as  a  speech  full  of  original  fire,  animation,  and 
passion;  all  springing  in  their  freshness  from  a  just 
knowledge  and  application  of  the  subject  and  cha- 
racter of  the  occasion ;  and  the  nature  and  disposition 
of  those  to  whom  it  is  addressed.  A  written  dis- 
course gives  you  no  idea  of  true  oratory — no  more 
than  a  lifeless  eagle  furnishes  you  with  a  just  idea  of 
the  same  bird,  when  cleaving  the  air  in  the  pride  and 
majesty  of  his  strength.  That  which  is  written,  ad- 
dresses its  subject — that  which  is  spoken,  addresses 
its  hearer.  No  man  can  infuse  the  passions  into  a 
written  discourse — it  is  unnatural.  No  written  speech, 
however  passionate,  glowing,  and  impressive  in  itself, 
can  ever  impart  equal  passion  to  the  speaker,  and 
certainly  not  to  the  audience.  It  is  necessarily  de- 
ficient in  that  mental  and  physical  action  that  is 
spoken  of  by  Demosthenes.  A  jury  is  captivated  and 
convinced  by  the  warmthy  energy,  and  sincerity  of  the 

VOL.  i. — 10 


138  THE    FORUM. 

advocate.  There  is  an  electrical  communication  and 
sympathy  between  speaker  and  hearer,  that  no  one 
can  describe,  and  which  rarely  can  exist,  where  one 
acts  upon  memory  and  the  other  upon  thought. 
What  is  intended  to  be  grave  and  impressive,  by  a 
written  discourse  is  often  rendered  light  and  ludicrous. 
We  remember  an  instance  of  this  sort — indeed  instances 
are  everywhere  to  be  found.  A  lawyer  who  adopted 
Cicero's  rule,  of  uvriting,  presented  himself  before  a 
jury  upon  an  important  case.  If  he  had  shared  in  the 
excitement  as  was  natural,  his  memory  would  have 
been  disturbed  and  he  would  probably  have  forgotten 
his  speech — he  therefore  chastised  and  subdued  himself, 
and  proceeded  coldly  and  deliberately  to  submit  his 
views  to  the  court  and  jury — when  of  a  sudden,  and 
most  unexpectedly  (for  so  it  was  written,)  he  burst 
forth,  and  exclaimed  with  an  affectation  of  great  fer- 
vor, "But  sirs,  I  grow  warm"  The  transition  was  too 
violent  to  be  appreciated,  and  it  was  followed  by  a 
laugh  from  the  entire  auditory. 

As  to  the  idea  that  writing  will  render  the  style 
more  perfect,  that  may  be ;  but  it  will  not  render  it 
more  prosperous,  and  in  truth  it  will  retard,  if  not 
destroy,  our  advances  towards  perfection  in  extempo- 
rary speaking,  which  is  the  crowning  glory. 

But  in  considering  the  ascendency  of  ancient  orators, 
we  have  overlooked  the  judicial  history  of  ancient 
States,  which  we  must  now  briefly  notice.  In  Egypt 


FORENSIC    ELOQUENCE.  139 

the  judges  consisted  of  thirty-one,  including  the  pre- 
sident, who  wore  a  gold  chain  suspended  from  his 
neck,  bearing  an  image  made  of  precious  stones. 
This  image  was  called  Truth,  and  when  the  president 
put  it  on,  the  trial  commenced.  All  the  laws  were  in 
eight  volumes,  which  lay  before  the  judges,  and  the  pro- 
ceedings were  conducted  in  writing — paper  books  were 
furnished,  but  unattended  by  any  oral  argument,  and 
the  case  was  decided  by  the  president's  placing  the  image 
of  Truth  upon  the  statement  and  pleadings  of  that 
party  in  whose  favor  the  court  determined.* 

Whatever  may  have  been  the  merits  of  their  legal 
literature,  the  course  of  the  proceedings  could  not 
have  been  productive  of  any  great  proficiency  in  elo- 
cution, nor  does  it  appear  from  juridical  history  that 
the  memory  of  their  proceedings  survived  the  age  that 
witnessed  them.  They  are  therefore  simply  adverted 
to  now,  in  order  to  a  cursory  chronological  review  of 
the  origin  and  progress  of  courts  of  justice  and  the 
modification  of  practice,  from  the  earliest  ages  down  to 
the  present  time. 

Following  Egypt  in  the  order  of  time,  and  in  some 
respects,  as  will  be  observed  in  the  character  of  her 
legal  proceedings,  history  next  presents  ancient  Greece 
to  our  consideration. 

Although  we  have  always  imagined  ourselves  to  be 
familiar  with  Grecian  eloquence,  and  speak  in  rap- 

*  Diodorus  Siculus. 


140  THE    FORUM. 

tures  of  Pericles,  Demosthenes,  and  ^schines,  the 
truth  is,  that  out  of  Athens,  "  The  Eye  of  Greece — the 
Queen  of  the  Violet  Crown/'  as  she  has  been  called, 
there  was  no  oratory  in  any  of  the  Grecian  States ; 
and  even  in  Athens,  oratory  was  mostly  confined  to 
parties,  or  relations  or  friends  of  parties,  who  some- 
times wrote  speeches  on  both  sides  and  made  a  living 
by  it.  Many  of  the  speeches  of  Demosthenes  were 
never  delivered  by  him,  but  by  his  clients.  The  popu- 
lace were  paid  for  attending,  so  that  it  became  a  sort 
of  trade.  The  dicasts  or  jurors  were  paid  out  of  fines 
and  forfeitures.  They  amounted  annually  to  six  thou- 
sand, and  each  received  five  oboli  a  day.  They  were 
divided  into  sections  of  five  hundred,  and  sometimes 
all  sat  together.  They  were  interested  in  convicting 
in  criminal  cases,  as  the  fines  were  paid  to  them,  or 
confiscation  enriched  the  treasury.  It  is  truly  said 
by  Hobbes,  that  the  utility  of  an  advocate  depends 
upon  the  tribunals  before  which  he  appears.  If  they 
are  corrupt  or  ignorant,  his  efforts  are  impaired ;  and 
Athens,  we  are  told,  was  in  so  bad  a  condition  in  this 
respect,  that  Socrates,  though  innocent,  disdained  to 
make  any  defence  against  a  charge  which  resulted  in 
his  death. 

Common  informers,  or  sycophants,  extorted  money 
from  the  fears  of  parties,  and  nothing  could  be  more 
corrupt  or  degrading,  than  the  whole  system  of  judicial 
proceedings.  There  could  scarcely  be  said  to  be  any 


FORENSIC    ELOQUENCE. 

rules  of  evidence — hearsay  testimony,  common  report, 
and  dying  declarations,  without  their  modern  safe- 
guards, were  all  received  in  evidence.  The  ostracism  of 
Aristides  and  the  death  of  Socrates,  are  in  short,  fair 
specimens  of  the  administration  of  the  laws  in  this  far- 
famed  wonder  and  mistress  of  the  world. 

There  was  one  respect  in  which  the  rules  of  their 
courts  somewhat  resembled  ours,  in  the  Supreme  Court, 
and  it  is  not  improbable  that  ours  may  have  been  de- 
rived from  their  classic  example — the  advocates  were 
limited  in  their  speeches  to  a  given  time,  and  that 
time  was  regulated  or  ascertained  by  a  clepsydra,  or 
water  clock,  which  derived  its  name  from  Clepsydra,  a 
famous  fountain  in  Messinia. 

The  clock,  however,  we  are  informed,  was  stopped 
during  the  time  of  the  advocate's  reading  any  docu- 
ments or  books.  This  limitation  accounts,  for  what 
otherwise  would  appear  strange,  that  in  the  reported 
speeches  we  not  unfrequently  find,  that  instead  of 
the  advocate  referring  to  want  of  time,  or  -to  the  limi- 
tation of  time,  he  speaks  of  being  out  of  water,  or  of 
leaving  some  part  of  his  water  for  his  colleague. 

This  practice  also  obtained  in  Rome,  to  whom  we 
now  pass  : — indeed,  the  Romans  derived  much  of  their 
learning,  many  of  their  virtues,  and  some  of  their 
vices,  from  the  Greeks.  Having  subjugated  Greece, 
the  vassals  became  teachers,  and  instructed  their  vic- 
tors in  philosophy,  in  poetry,  and  in  oratory. 


142  THE    FORUM. 

Originally  the  kings  of  Rome  presided  at  trials. 
After  the  expulsion  of  kings,  the  jurisdiction  was 
exercised  by  the  consuls,  and  subsequently  by  the 
prsetors. 

The  praetors  were  at  first  two :  Praetor  Urbanus  and 
Praetor  Pereginus;  afterwards  their  number  was  in- 
creased, and  in  the  time  of  Cicero  there  were  twelve. 
They  did  not  always  hear  the  causes  themselves,  but 
were  authorised  to  appoint  judges,  and  when  the  praetor 
held  the  court  he  summoned  to  his  assistance  a  num- 
ber of  assessors,  called  judices,  who  were  taken  from 
the  Centum-viral  body.  The  trials  were  of  four 
classes:  Actiones  Populares,  Actiones  Extraordinarise, 
Judicia  Publica,  and  Judicia  Populi.* 

The  Romans  spoke  of  all  as  orators,  who  accustomed 
themselves  to  public  speaking,  either  in  popular  assem- 
blages or  courts  of  law.  An  eloquent  speaker  acquired 
an  influence  which  placed  all  the  honors  of  the  State 
within  his  grasp :  but  he  was  not  obliged  to  study  the 
law  before  he  entered  into  public  life.  He  was  bound 
to  defend  the  rights  of  his  clients,  when  attacked  in  a 
court  of  law,  and  was  prohibited  from  accepting  any 
fee.  The  term  advocate,  was  not  applied  to  a  pleader 
until  after  the  time  of  Cicero.  Its  true  signification 
was  a  friend,  and  referred  to  those  numerous  persons 
who  assembled  in  behalf  of  the  respective  parties.  In 
the  early  ages  the  parties  carried  on  the  cause  them- 

*  Hortensius,  page  90. 


FORENSIC    ELOQUENCE.  143 

selves,  with  the  aid  of  the  Juris  Consults,  who  were, 
what  might  be  called,  the  Chamber  Council. 

The  Judices  or  Judges  in  Rome,  combined  the  cha- 
racters of  court  and  jury.  They  might  modify  or 
qualify  the  sentence— or  even  pardon — but  theirs  was 
the  sole  authority.  They  determined  upon  law  and 
fact — often  with  but  little  knowledge  of  the  former, 
and  less  regard  for  the  latter.  Artifice,  management, 
and  dramatic  effect,  often  exercised  most  powerful  in- 
fluence over  the  results  of  their  investigations  or  trials. 
And  the  bolder,  or  in  some  cases  the  more  submissive 
the  defendant,  the  more  secure  he  was  of  escape  from 
condign  punishment.  Wounds  were  publicly  exhibited 
in  the  forum — war-worn  mantles  or  shields  were  pa- 
raded before  the  offender — former  wealth  or  services — 
present  poverty  and  imbecility — were  freely  worked 
into  every  case  that  would  admit  of  it,  for  the  purpose 
of  screening  an  offender.  And  such  schemes  were  not 
merely  resorted  to  by  the  defendant,  but  were  adopted 
from  the  lowest  to  the  highest  of  the  advocates.  Cicero, 
who  was  above  them  all  in  talents,  fairly  rivalled  then, 
in  the  variety  and  ingenuity  of  his  professional  inven- 
tions to  hoodwink  justice,  and  substitute  mawkish 
sympathy  for  the  severe  dignity  of  a  judicial  tribunal. 
We  need  not  refer  to  the  cases  of  Manlius,  Acquilius, 
Phryne,  Galba,  and  Fronteius.  This,  however,  was  not 
the  worst  feature  in  their  jurisprudence ;  the  counsel 
for  public,  as  well  as  private  prosecutions,  adopted  a 


THE    FORUM. 

similar  course.  Widows,  whose  husbands  were  alleged 
to  have  been  murdered,  in  mourning  robes  and  dissolved 
in  tears,  and  rending  the  air  with  shrieks  of  agony, 
were  introduced  into  the  forum.  Children,  who  had 
been  defrauded,  presented  themselves  with  tearful  eyes 
and  upraised  hands,  praying  for  justice ;  while  the  rags 
in  which  they  were  temporarily  and  artfully  clothed 
for  the  occasion,  lent  irresistible  force  to  their  appeals.* 

But  further — the  advocates  had  no  knowledge  of  the 
law,  and  what  is  worse,  not  ^infrequently  boasted  of 
their  ignorance.  And  this,  perhaps,  is  their  only 
excuse  for  substituting  for  legitimate  argument,  every 
sort  of  craft  and  contrivance  that  was  likely  to  inveigle 
and  secure  victory,  at  the  expense  of  the  law  and  of 
justice,  to  say  nothing  of  their  assumed  lofty  character. 

As  to  the  Praetors  and  Judices,  but  little  can  be 
gathered  from  history  that  can  be  profitable  or  avail- 
able to  legal  science  at  the  present  day.  They  were 
not  lawyers,  nor  familiar  with  the  law.  They  derived 
their  instruction  from  the  opinions  of  the  Juris 
Consults,  and  were  not  always  very  careful  in  the 
application  of  that  instruction.  There  were  no  ex- 
ceptions, writs  of  error,  or  appeals  from  their  deci- 
sions, and  in  the  exercise  of  arbitrary  power,  they 
became  sometimes  regardless  of  the  sacred  principles 
of  right,  of  which  the  law  justly  administered,  is  ever 
the  best  safeguard.  They  were  political  judges,  de- 

*  Hortensius,  page  107. 


FORENSIC    ELOQUENCE.  145 

pendent  upon  popular  favor,  often  swayed  by  personal 
motives,  or  individual  or  party  prejudices;  and  still 
more  frequently  governed  rather  by  the  exigency  of 
the  times  than  the  principles  of  justice.  The  passions 
exercised  greater  influence  upon  their  deliberations 
and  judgments,  than  the  merits  of  the  controversies 
that  they  were  called  upon  to  determine. 

The  advocates  of  those  times  of  course  conformed  their 
addresses  to  the  spirit  of  the  times,  and  the  nature  of 
their  tribunals.  Rhetoric  took  the  place  of  logic,  and 
sheer  sophistry  not  unfrequently  usurped  the  place  of 
both.  With  but  rare  exceptions,  there  were  no  scien- 
tific lawyers  among  them.  They  encountered  immense 
labour,  it  is  true,  but  it  was  not  in  devotion  to  the  sci- 
ence of  jurisprudence,  but  in  the  cultivation  of  a  know- 
ledge of  general  science,  and  more  especially  the  arts 
and  refinements  of  oratory.  Lawyers  such  as  Scsevolo 
and  Sulpicius,  occupied  a  lofty,  but  still  subordinate 
sphere  of  life.  They  were  to  the  orators  what  attorneys 
and  special  pleaders  are  to  the  barristers  in  England. 
They  appeared  in  the  "atrium"  daily,  but  rarely  spoke 
in  a  case,  and  when  they  did,  were  almost  invariably 
defeated  in  their  causes,  as  might  be  supposed,  as  the 
value  of  their  learning  was  beyond  the  appreciation  of 
the  Judices ;  and  their  want  of  accomplishment  in  the 
beauties  and  blandishments  of  oratory,  was  turned  into 
ridicule,  or  treated  with  contempt,  by  those  who  had 
given  their  whole  lives  to  the  most  sedulous  study  of 


146  THE    FORUM. 

eloquence.  Even  Cicero  himself,  though  at  times  he 
prides  himself  upon  his  legal  knowledge,  affects  to 
scorn  them,  when  in  the  defence  of  Murena,  he  says, 
"  If  you  put  me  upon  my  mettle,  overwhelmed  with 
business  as  I  am,  I  will  in  three  days  declare  myself  a 
juris  consult." 

But,  suspending  this  hasty  survey,  or  rather  glance, 
at  the  ancient  forms  of  justice,  and  the  modes  and 
morals  of  advocacy — to  both  of  which  we  may  again 
incidentally  refer — let  us  pass  from  the  Roman  Repub- 
lic, which  was  destroyed  before  the  Christian  era,  to 
the  time  of  QuintilHan,  who  was  born  during  the 
reign  of  Nero.  QuintilHan  was  a  great  admirer  of 
Cicero,  and  became  one  of  the  most  distinguished  rheto- 
ricians of  the  age  in  which  he  lived.  The  Augustan 
age  which,  having  formed  the  interval  betweeen  Cicero 
and  Quintillian,  was  more  celebrated  for  its  learning, 
its  historians,  and  its  poets,  than  its  orators.  Freedom 
of  speech  dwindled  for  a  time  into  comparative  insigni- 
ficance, and  almost  perished  under  the  blighting  power 
and  influence  of  royalty;  still,  like  the  dying  day,  it 
gave  some  of  its  brightest  flashes  in  its  expiring  mo- 
ments. 

QuintilHan,  who  died  at  about  the  age  of  fourscore,  in 
the  one  hundred  and  twentieth  year  of  the  Christian 
era,  though  an  inferior  orator  to  Cicero,  was  a  superior 
teacher,  and  his  "  INSTITUTES  OF  ORATORY"  contain  more 
practical  instruction  than  any,  or  all  the  other  works 


FORENSIC    ELOQUENCE. 

upon  that  subject  that  have  been  handed  down  to 
us.  He  wrote  with  great  beauty,  purity,  and  power ; 
and  unlike  his  prototype,  he  inculcated  the  advantages 
of  improving  the  faculty  of  extemporary  speech,  and 
recommended  a  thorough  general  preparation  for  an 
argument,  in  preference  to  the  course  theretofore  too 
much  in  use,  of  directing  the  mind  to  just  so  much 
law,  as  might  be  deemed  necessary  for  the  occasion. 
He  was  a  devotee  to  his  profession,  and  although  he 
withdrew  from  its  more  active  pursuits  after  the  loss 
of  his  wife  and  children,  he  continued  the  instruction 
of  others,  and  composed,  as  history  informs  us,  many 
orations  in  his  retirement,  which  equalled  in  classic 
beauty,  the  best  productions  of  the  Augustan  age; 
and  perhaps  we  cannot  do  better  than  borrow  from 
him  a  sentence — strongly  expressed,  it  is  true — as  in- 
troductory to  our  imperfect  views,  upon  the  present 
subject : 

"  May  I  perish,"  says  Quintillian,  "  if  the  all-power- 
ful Creator  of  nature  and  Architect  of  this  world,  has 
impressed  man  with  any  character  which  so  eminently 
distinguishes  him  from  other  animals,  as  the  faculty  of 
speech.  When  nature  has  denied  expression  to  man, 
how  very  little  do  all  his  boasted  divine  qualities  avail 
him."  This  plainly  refers,  not  to  the  mere  natural  or 
abstract  faculty,  but  to  the  improvement  and  refine- 
ment of  which  it  is  capable,  and  the  tremendous  power 
which,  when  highly  improved  and  refined,  it  exercises 


148  THE    FORUM. 

over  the  condition  and  worldly  destiny  of  men. 
Rightly  understood,  it  is  far  superior  in  its  influence, 
to  that  mighty  and  fearful  engine,  the  press ;  it  swayed 
nations  before  the  press  was  known.  It  attracts,  sus- 
tains, and  controls  men  and  empires  at  pleasure ;  wield- 
ing, at  will,  the  fierce  democracy.  "  It  is  beautiful  as 
Tirzah,  comely  as  Jerusalem,  terrible  as  an  army  with 
banners." 

Speech  alone,  can  successfully  contend  with  types — 
for  nearly  fifty  years,  until  very  recently,  no  general 
war  has  distracted  Christendom,  and  the  voice  of  the 
world  is  still  for  peace.  Yet  one  inspired  and  accom- 
plished orator,  of  himself,  without  the  influence  of 
birth  or  fortune,  or  any  external  aid — drawing  only 
upon  his  own  intellectual  resources,  shall  confront  the 
press,  raise  and  quell  armies  at  pleasure,  stand  forth 
unblenching  in  the  full  blaze  of  royalty ;  govern  whole 
nations,  and  enchant  while  he  governs,  and  convince  a 
rapturous  and  astonished  world,  that  there  is  no  aris- 
tocracy so  supreme  and  unquestionable  as  the  aristo- 
cracy of  speech.  It  is  at  once  the  pride  of  peace,  and 
the  terror  of  war. 

"  It  rides  upon  the  zephyr's  wing, 
Or  thunders  in  the  storm." 

The  eloquence  thus  spoken  of,  is  the  perfection  of 
speech.  With  us,  it  must  be  said,  to  be  of  rare  attain- 


FORENSIC    ELOQUENCE.  149 

merit ;  indeed,  the  whole  world,  through  its  countless 
ages,  has  furnished  but  few  distinguished  orators, 
though  in  every  other  department  of  art  and  science, 
it  has  been  comparatively  munificent.  The  reason  of 
this  is,  that  the  faculty  has  not  been  studiously  and 
laboriously  improved.  Rhetoric  and  logic,  it  is  true, 
are  branches  of  our  systems  of  education,  but  they  are 
abandoned  when  scarcely  begun,  instead  of  being  prose- 
cuted to  those  glorious  results,  which  amaze,  exalt,  or 
subdue  mankind. 

With  us,  eloquence  in  one  sense,  may  be  said  to  be 
spontaneous  with  the  whole  people ;  but  it  partakes, 
in  some  respects,  of  a  savage  character — it  is  what  is 
usually  termed  natural  eloquence,  wild  as  the  prairie, 
and  rough  as  the  unpolished  and  encrusted  diamond — 
"  Satis  loquentia,  eloquentia  parum." 

Nature  and  fortune  have  been  so  bountiful,  so  pro- 
digal to  this  country,  as  to  render  us  apparently  indif- 
ferent to  all  adventitious  aid.  As%a  man  of  great 
innate  powers  sometimes  triumphs  over  the  want  of 
education,  and  wrests,  by  inherent  strength,  the  laurels 
from  the  brow  of  the  orator,  the  philosopher,  or  the 
sage ;  so  America,  a  youthful  giant,  in  the  confidence  of 
her  own  energy,  is  too  apt  to  despise  all  considerations 
of  symmetry,  or  of  grace ;  of  skill,  or  of  beauty.  The 
sun,  in  his  wide  career,  never  shone  upon  a  people 
possessed  of  greater  resources,  of  more  abundant  capa- 
city for  improvement;  and  so  far  as  regards  the  present 


THE    FORUM. 

subject,  never  witnessed  capacities  and  resources  less 
advantageously  employed. 

Travellers  report  us  truly — let  it  not  be  disguised — 
as  a  money-making,  money-loving  people ;  and  it  would 
be  well,  if,  instead  of  being  restless  under  the  charge — 
which  derives  its  chief  severity  from  its  truth — our 
attention  were  directed  to  the  reform  of  the  evil. 
Once  seriously  attempted,  and  the  work  is  half  accom- 
plished ;  every  successive  step  shall  be  easier  than  the 
past;  and  the  mind — the  immortal  part  of  man — having 
escaped  from  the  sordid  thraldom  of  the  pocket,  shall 
indulge  in  a  store  of  endless  moral  and  intellectual 
riches,  not,  perhaps,  the  less  delightful,  for  having 
hitherto  been  unknown. 

Liberty  is  ever  essential  to  eloquence;  it  cannot 
spring  or  bloom  in  a  land  of  slaves ;  but  liberty  alone 
is  insufficient;  civilization  and  cultivation  must  coincide 
with  it.  Liberty  is  the  soil,  and  a  fruitful  soil,  but 
refinement  is  the  culture.  Liberty  may  be  said  to  be 
the  body,  but  refinement  is  the  symmetry ;  the  soul — 
the  grace,  the  celestial  impress  of  that  body,  without 
which,  the  features  and  limbs  of  Apollo,  would  be 
objects  of  contempt,  rather  than  admiration.  As  it  is 
not  individual  liberty  that  we  speak  of,  neither  is  it 
individual  refinement.  We  refer  to  national  liberty — 
national  refinement — which  first  fan  the  latent,  heaven- 
born  spark  of  genius  into  a  flame,  and  then  supply  the 
care  that  feeds  it,  and  prevents  its  extinguishment. 


FORENSIC    ELOQUENCE. 

So  true  it  is,  as  was  beautifully  remarked  by  Longinus, 
"  that  liberty  is  the  nurse  of  eloquence.  It  animates  the 
spirit,  and  invigorates  the  hopes  of  men;  excites  honor- 
able emulation,  and  a  desire  of  excelling  in  every 
art.  All  other  qualifications  you  may  find  among 
those  who  are  deprived  of  liberty;  but  never — never 
did  a  slave  become  an  orator!  He  can  only  be  a 
pompous  flatterer ;  his  spirit  being  effectually  broken, 
the  timorous  vassal  will  still  be  uppermost.  The  habit 
of  subjection  overawes  and  beats  down  his  genius." 

"  Jove  fixed  it  certain,  that  whatever  day 
Makes  man  a  slave,  takes  half  his  worth  away." 

But  while  freedom,  it  is  true,  is  requisite  to  the  full 
development  of  the  powers  of  speech,  let  it  still  be 
remembered,  that  an  orator  is  chiefly  created  by  him- 
self. Without  self-creation,  no  chance  can  avail  him. 
The  efforts  made  by  Demosthenes  to  overcome  the 
difficulties  of  articulation,  and  his  personal  and  habitual 
defects,  were  more  than  equal  to  the  accumulated  labor 
bestowed  upon  the  attainment  of  this  divine  art,  from 
the  time  of  QuintiUian  down  to  that  of  Chatham. 
Tully  also,  exhausted  all  the  sources  of  improvement 
that  Rome  or  Greece  could  supply ;  he  was  instructed 
by  the  first  masters  in  philosophy,  in  the  sciences  and 
the  arts,  and  for  the  purpose  of  perfecting  himself  in 
the  blandishments  and  beauties  of  eloquence,  he  de- 


152  THE    FORUM. 

voted  many  years  of  his  life  to  an  intellectual  inter- 
course with  the  most  gifted  and  distinguished  women 
of  the  age — Cornelia  and  others, — and  he  tell  us,  that 
the  Gracchi,  who  became  distinguished  speakers,  were 
educated  "  Non  tarn  in  gremio,  quam  in  sermone  rna- 
tris !"  Thus  was  acquired  that  flexibility,  softness  and 
sweetness  of  expression,  which  could  not  so  well  have 
been  derived  from  any  other  instruction. 

Among  the  Romans,  children  even,  were  taught  to 
speak  the  language  purely  at  first,  by  allowing  them  to 
hear  nothing  but  the  best  phrases;  and  it  is  said  of 
Curio — considered  among  the  first  class  of  orators  in 
his  time — that  he  understood  no  poet ;  had  read  no 
books  on  eloquence,  and  had  scarcely  any  knowledge 
of  the  law.  The  only  thing  which  secured  his  emi- 
nence and  applause,  was  his  correctness  and  beauty  of 
speech,  quickness  of  apprehension,  and  great  fluency  of 
expression.  The  attention  of  every  child,  and  the  hopes 
of  every  parent,  seemed  to  be  directed  to  the  forum, 
whence  they  expected  the  highest  honors  and  prefer- 
ments. 

Demosthenes  became  a  rival  in  fame  to  Homer; 
Cicero  to  Virgil ;  for  the  industry  and  devotion  of  the 
Orators  were  equal  to  those  of  the  Poets.  But  Milton 
shall  be  remembered,  when  Chatham  is  forgotten.  This 
is  not  to  be  attributed  to  any  natural  inferiority  of  the 
British  statesman,  but  to  an  inferiority  in  labor  in 
acquiring  the  great  accomplishment,  as  well  as  to  the 


FORENSIC    ELOQUENCE.  153 

want  of  due  appreciation  by  the  age  in  which  he  lived, 
and  by  that  which  has  succeeded. 

The  supineness  of  men.,  which  leads  them  to  live 
idly  and  indulge  their  animal  appetites,  preferring  bond- 
age in  ease,  to  strenuous  liberty,  has  superadded  con- 
tumely to  neglect.  The  art  of  speech,  therefore,  is 
degraded,  instead  of  receiving  encouragement ;  and  no 
one  is  willing  to  toil,  when  the  reward  is  to  be  public 
odium,  indifference,  or  contempt.  Hence  it  is,  that 
republican  antiquity  leaves  us  so  far  behind  in  this 
immortal  race.  To  say  nothing  of  those  great  Grecian 
and  Roman  models  already  adverted  to,  Pliny  and 
other  cotemporaneous  historians,  mention  numerous 
instances  of  men  of  the  most  powerful  minds,  who 
had  been  engaged  in  the  study  of  oratory  for  nearly 
half  a  century,  without  deeming  themselves  fully 
qualified  to  venture  a  public  harangue  upon  any  im- 
portant occasion.  Since  the  time  of  Pliny,  no  devo- 
tion like  this  has  been  known  to  the  world ;  and  there- 
fore no  results  comparable  to  those  of  former  ages, 
could  reasonably  be  anticipated.  Pitt,  Fox,  Whitfield, 
Wesley,  Erskine,  Curran  and  Grattan,  rendered  them- 
selves illustrious  by  their  comparative  superiority,  when 
considered  with  reference  to  others  of  their  own  times, 
who  were  engaged  in  parliamentary,  clerical,  or  foren- 
sic duties.  Oratory  with  them,  however,  was  but  an 
incident,  and  not  the  great  study  of  their  lives.  And, 
as  it  was  an  incidental  pursuit,  it  was  attended  only 
VOL.  i. — 1 1 


154  THE    FORUM. 

by  incidental  fame.  The  few  years  that  have  rolled 
by,  since  they  performed  so  prominent  a  part  on  the 
world's  stage,  have  almost  obliterated  the  recollection 
of  their  temporary  and  transitory  glory. 

The  only  reasons  for  the  lamentable  deterioration  of 
modern  times,  are  want  of  leave,  and  want  of  labor ; 
men  will  die  for  immortality,  but  they  will  not  live  for 
it ;  they  will  encounter  sudden  and  violent  death,  but 
they  will  not  submit  to  a  laborious  and  devoted  life. 

The  present  is  an  era  of  opportunity,  without  the 
will  to  embrace  it.  Let  the  inclination  but  once  truly 
manifest  itself — the  result  is  not  to  be  doubted.  Let 
us  begin  to-day  where  we  ended  yesterday,  and  stead- 
fastly pursue  our  object,  with  incessant  study,  and 
with  ardor,  self-denial  and  confidence,  in  the  pursuit. 
Let  us  apply  ourselves  to  the  neglected  art  of  speech, 
as  we  would  to  divinity,  law,  medicine,  poetry,  paint- 
ing, sculpture,  even  commerce,  and  our  orators  shall 
be  as  conspicuous  as  the  professors  of  any  of  those 
sciences,  or  any  of  those  arts.  Let  us  build  daily  and 
hourly  upon  our  collegiate  foundation,  instead  of  aban- 
doning it  to  premature  and  cureless  decay. 

A  life  devoted  to  study,  and  especially  such  study, 
is  a  life  of  pleasure,  of  deserved  distinction,  of  lucra- 
tive acquisition,  of  transcendent  power.  Labor,  in 
some  sphere,  is  the  lot  of  man,  but  it  is  at  the  same 
time,  rightly  viewed,  the  delight  of  man ;  the  source 
and  sweetener  of  the  highest  and  noblest  social  enjoy- 


FORENSIC    ELOQUENCE. 

ments.  To  the  student  of  oratory,  those  enjoyments 
are  indeed  most  precious  and  most  necessary;  they 
are  aids  to  his  advancement.  The  fine  arts,  polite 
literature — in  short,  all  the  graces  and  the  muses,  are 
tributary  to  his  formation  and  success.  They  may  all 
be  wooed  and  won  by  labor,  and  without  labor,  they 
will  all  assuredly  be  lost.  Incessant  study  loses  its 
fancied  severity,  by  being  universal  or  various.  Mental 
exercise  and  mental  health  are  perfected  by  diffusion, 
as  well  as  concentration ;  and  this  remark  is  peculiarly 
appropriate,  as  applied  to  oratory. 

The  mind  of  the  orator  should  be  directed  to  history, 
poetry,  music,  painting  and  sculpture,  in  order,  in  the 
language  of  Cicero,  that  he  may  comprehend  that  in- 
tellectual relation,  that  secret  charm  in  the  liberal  pro- 
fessions, which  connecting  one  with  another,  combines 
the  influence  and  powers  of  all. 

Oratory  is  distinguished,  because,  while  it  requires, 
it  implies  extensive  knowledge.  It  is  a  mistake  to 
suppose,  as  has  been  too  frequently  suggested,  that 
accomplishment  in  speaking  indicates  a  want  of  accom- 
plishment in  thought.  As,  for  instance,  that  a  great 
speaker  cannot  be  a  great  statesman,  a  great  lawyer, 
or  an  eminent  divine.  This  is  one  of  the  absurdities 
and  slanders  of  the  day.  In  truth,  a  great  statesman, 
lawyer  or  divine,  must  be  a  great  speaker.  What  were 
Scse voli  and  Sulpicus  to  Cicero  and  Hortensius  ?  Chatham 
and  Mansfield  were  the  greatest  statesmen  of  their  time. 


THE    FORUM. 

Lord  Chesterfield,  in  writing  to  his  son,  says  of 
them  :  "  They  are,  beyond  comparison,  the  best  speak- 
ers; Why?  Only  because  they  are  the  best  orators. 
They  alone,  can  inflame  or  quiet  the  House — they 
alone,  are  attended  to,  in  that  numerous  and  noisy 
assembly,  so  that  you  might  hear  a  pin  fall  while  either 
of  them  is  speaking.  Is  it  that  their  matter  is  better, 
or  their  argument  stronger,  than  other  people  ?  Does 
the  House  expect  extraordinary  information  from  them  ? 
Not  in  the  least — but  the  House  expects  pleasure  from 
them,  and  therefore  attends — -finds  it,  and  therefore 
approves.  Take  my  word  for  it,  that  success  turns 
more  upon  manner  than  matter." 

Marshall,  Brougham,  and  Dupin,  were  the  greatest 
lawyers  of  their  respective  countries,  yet  their  talents 
for  speech  secured  them  more  fame,  fortune  and  pro- 
motion, than  without  it,  all  their  law  learning  could 
ever  have  acquired.  This  is  readily  understood — a 
man  who  cannot  speak,  or  who  speaks  unintelligibly, 
(whatever  may  be  his  knowledge,)  thinks  for  himself. 
A  speaker,  thinks  for  thousands,  by  making  thousands 
think  as  he  does.  An  eloquent  writer  is  better  for  the 
future — an  eloquent  speaker  better  for  the  present ; 
the  laurels  of  the  former  cluster  round  his  grave,  those 
of  the  latter  encircle  his  brows.  One  is  a  draft  on 
time,  the  other  at  sight.  Writing  improves  more — 
speaking  delights  and  convinces  more.  One  who  deals 
in  substantives,  is  much  stronger  than  one  who  deals 


FORENSIC    ELOQUENCE. 

in  adjectives.  The  former  gives  you  a  variety  of 
matter,  the  latter  often  only  a  variety  of  qualities,  of  a 
single  matter. 

The  advocate,  compared  to  a  mere  lawyer,  is  "Hy- 
perion to  a  Satyr."  His  power  and  his  glory  pervade 
the  whole  realm.  The  lawyer  is  very  well  in  certain 
limits,  and  in  a  certain  way,  and  with  certain  men ; 
but  the  orator  is  confined  to  no  place — no  occasion 
— no  men;  but  is  conspicuous  in  all,  and  with  all. 
In  private,  as  well  as  in  public — at  the  forum,  or  at 
the  banquet ;  surrounded  by  listening  senates,  or  en- 
compassed by  the  social  circle,  eloquence  is  still  supreme. 

"  "Tis  musical 
As  bright  Apollo's  lute,  strung  with  his  hair !" 

By  eloquence,  we  do  not  mean  mere  fluency — much 
less,  flippancy.  Yet  words  are  not  to  be  despised  or 
undervalued.  "  Words,  fitly  spoken,  are  like  apples  of 
gold  in  pictures  of  silver."  The  perfect  master  of  lan- 
guage, has  achieved  half  the  work  of  an  orator,  and  the 
best  half,  too.  The  weapons  in  his  armory  are  com- 
plete ;  they  are  of  the  "  ice-brook's  temper,"  andxall  that 
is  required  is  the  courage,  and  skill,  and  judgment  to 
use  them. 

No  man  can  be  perfect  in  any  language,  without 
being,  to  a  great  extent,  necessarily  familiar  with  the 
knowledge  which  that  language  was  designed  and  cal- 
culated to  convey.  Those  egregiously  err,  who  consi- 


158  THE    FORUM. 

der  language  the  first  stage  of  a  progress :  in  other 
words,  that  it  is  to  the  orator,  what  it  may  be  said  to 
be  to  the  infant.  It  is  the  very  last  thing  attained,  if, 
indeed,  it  ever  be  perfectly  attained :  and  it  is  the 
gloss,  the  embellishment,  the  introduction,  the  recom- 
mendation of  every  thing  else.  You  have  probably 
known  many  great  men  without  it; — you  certainly 
never  knew  a  man  with  it,  who  was  not  great.  It  is 
possessed  by  few,  desired  by  many,  and  envied  by  all. 

Eloquence  consists,  it  is  true,  more  in  the  harmoni- 
ous structure  of  thought,  and  in  the  depth  and  subli- 
mity of  feeling,  than  in  the  adoption  of  measured  lan- 
guage, the  manufacture  of  phrases,  or  the  graceful  fall 
of  well-turned  periods.  Those  who  bestow  more  atten- 
tion upon  words  than  upon  reason  and  sentiment,  never 
yet  were,  and  never  can  be  eloquent ;  they  are  mere 
tuners  of  accents ;  and  either  speak  holliday,  or  make 
fritters  of  the  King's  English.  "  Like  the  screech-owl — 
they  are  all  noise  and  feather,  without  flesh  or  blood." 

Words,  nevertheless,  are  the  apparel  of  thought.  It  is 
by  no  means  necessary  to  a  distinguished  man,  that  his 
dress  should  be  studiously  considered,  and  nicely  ad- 
justed; but  still,  a  proper  regard  to  decency  of  exterior, 
as  evincing  a  becoming  respect  to  the  taste  and  opinions 
of  others,  may  contribute  to  enlarge  the  sphere  of  his 
usefulness,  and  to  recommend  him  to  those  portions  of 
society,  whose  perspicacity  never  enabled  them  to  dis- 
cover virtue  in  poverty,  or  genius  in  rags. 


FORENSIC    ELOQUENCE.  159 

With  this  understanding,  then,  words  may  be  said  to 
be  things — and  most  important  things — as  connected 
with  our  present  subject;  a  sort  of  letter  of  introduction, 
or  passport  from  heart  to  heart,  obtaining  access  for  more 
valuable  and  less  perishable  impressions.  A  blush  has 
been  called  the  color  of  innocence :  to  the  eye  of  the 
superficial  observer,  the  contemplation  of  external  signs 
is  the  least  painful  and  most  important ;  and  if  these 
shall  result  in  finally  attracting  attention  to  the  inward 
man,  even  in  the  estimation  of  divine  philosophy,  they 
are  not  to  be  utterly  despised.  If  some  modern  ora- 
tors— these  tritons  of  the  minnows — should  monster 
their  nothings,  or  fastidiously  decorate  and  bedizen  the 
puny  and  sickly  offsprings  of  their  brain  in  embroidery 
and  brocade,  and  thereby  introduce  them  like  shallow 
fops,  into  the  best  society,  great  men  may  derive  in- 
struction from  their  folly,  and  profit  by  their  example. 
It  is  the  privilege  of  philosophy,  to  derive  benefit  from 
the  weakness  as  well  as  from  the  wisdom  of  others. 

I  differ,  toto  cselo,  therefore,  from  those  who  under- 
rate the  beauties,  and  blandishments,  and  graces  of 
oratory.  Cicero  is  a  shining  instance  of  the  correctness 
of  the  doctrine  now  contended  for.  Aware  of  the  im- 
portance of  language,  the  chief  of  his  life,  as  has  been 
said,  was  devoted  to  its  study.  Inferior,  undoubtedly, 
to  Demosthenes,  in  force  of  thought  and  character,  yet 
was  he  a  more  finished  orator.  The  arrangement  of 
his  sentences  was  more  perfect,  his  language  more 


160  THE    FORUM. 

select ;  but  in  action,  as  well  as  in  matter,  no  man  can 
carefully  read  the  discourses  of  those  great  masters, 
without  acknowledging  the  supremacy  of  the  Greek. 
The  oratory  of  Cicero  may  be  compared  to  a  majestic 
river,  gliding  through  mount,  and  vale,  and  plain,  and 
reflecting  from  its  broad  and  tranquil  bosom,  the  flowers, 
and  the  foliage,  the  smiling  villages  and  stately  cities 
that  decorate  its  shores ;  while  it  exhibits  the  beauties 
of  the  bright  cerulean,  and  sparkles  in  the  rays  of  the 
o'erhanging  firmament.  That  of  Demosthenes,  on  the 
contrary,  resembles  the  mighty  ocean,  dark,  deep,  and 
terrible — now  fanned  by  the  'gentle  zephyrs,  and  now 
lashed  and  chafed  by  the  storm — now  smooth  and  un- 
ruffled, as  ere  winds  began  to  blow;  and  now  foaming 
and  directing  its  rage,  as  it  were,  even  against  high 
heaven  itself — theirs  was  the  difference  between  beauty 
and  sublimity;  between  symmetry  and  strength;  be- 
tween Apollo  and  Hercules. 

Character  does  not  depend  more  upon  opinion,  than 
opinion  upon  character;  when,  therefore,  inquired  of, 
what  were  the  chief  qualities  of  an  orator,  the  great 
Grecian  master  replied  "action;" — and  the  world  shall 
witness  that  he  was  right.  It  embraces  and  enforces 
every  thing.  No  man  of  imbecile  mind,  feebleness  of 
conception,  poverty  of  language,  or  coldness  of  heart, 
can  possibly  be  possessed  of  action.  We  do  not  un- 
derstand by  action,  gesticulation,  or  attempt  at  dra- 
matic effect ;  but  that  adaptation,  or  conformity  of  the 


FORENSIC    ELOQUENCE. 

graces  and  powers  of  body  and  mind,  which  shows  that 
the  whole  soul  is  enlisted  in  the  cause.  In  homespun 
phrase,  it  means  to  be  in  earnest ;  to  appear  to  believe 
and  feel  yourself,  what  you  desire  to  induce  others  to 
believe  and  feel.  In  an  ancient  work,  "  The  Reliques 
of  Literature,"  is  contained  a  quaint  expression  of 
opinion,  illustrative  of  this  subject,  which  is  not  un- 
worthy of  regard,  as  it  contains  most  valuable  and 
appropriate  instruction. 

"  Cicero  and  Roscius,"  says  the  author  referred  to, 
"  are  most  complete,  when  they  both  make  but  one 
man.  He  answered  well,  that  after  often  asking,  said 
still,  that  action  was  the  chiefest  part  of  an  orator. 
Surely,  the  oration  is  most  powerful  when  the  tongue 
is  diffusive,  and  speaks  in  a  native  decency  even  in 
every  limb.  A  good  orator  should  pierce  the  ear, 
allure  the  eye,  and  invade  the  mind  of  his  hearer;  and 
this  is  Seneca's  opinion :  '  Fit  words  are  better  than 
fine  ones.'  I  like  not  those  that  are  injudiciously 
made,  but  such  as  are  expressively  significant;  that 
lead  the  mind  to  something  beside  the  naked  turn; 
(and  he  that  speaks  thus,  must  not  look  to  speak  thus 
every  day.)  Words  are  not  all — matter  is  not  all — 
nor  gesture ;  yet  together,  they  are.  'Tis  much  moving 
in  an  orator,  when  the  soul  seems  to  speak  as  well  as 
the  tongue.  Tully,  we  are  told,  was  admired  more 
for  his  tongue  than  his  mind.  Aristotle,  more  for  his 
mind  than  his  tongue ;  but  Plato  for  both.  And  surely, 


162  THE    FORUM. 

nothing  decks  an  oration  more,  than  a  judgment  well 
able  to  conceive  and  to  utter.  I  know  God  hath  chosen 
by  weak  things  to  confound  the  wise ;  yet  even  the 
Scriptures  are  penned  in  a  tongue  of  deep  expression, 
wherein  almost  every  word  hath  a  metaphorical  sense, 
which  doth  illustrate  by  some  illusion." 

"How  political  is  Moses  in  his  Pentateuch  !  How 
philosophical  is  Job !  How  massive  and  sententious 
is  Solomon  in  his  proverbs !  How  quaint,  and  flam- 
ingly  amorous  in  the  Canticles !  How  grave  and 
solemn  in  his  Ecclesiastes !  How  eloquent  a  pleader 
is  Paul  at  the  bar — in  disputation  how  subtle ! — and 
he  that  reads  the  Fathers,  shall  find  them  as  if  written 
with  a  crisped  pen.  Nor  is  it  such  a  fault  as  some 
would  make  it,  now  and  then  to  let  a  philosopher  or  a 
poet  come  in  and  wait,  and  give  a  trencher  to  this  ban- 
quet ;  St.  Paul  is  a  precedent  for  it.  I  wish  no  man 
to  be  too  dark,  and  full  of  shadow.  There  is  a  way  to 
be  pleasingly  plain,  and  some  have  found  it.  Nor  wish 
I  any  man  to  totally  neglect  his  hearers.  Some  sto- 
machs rise  at  sweet-meats !  He  prodigals  a  mind  of 
excellency,  that  lavishes  a  terse  oration  upon  a  feeble 
auditory.  Mercury,  himself,  may  move  his  tongue  in 
vain,  if  he  has  none  to  hear  him  but  the  non-intelli- 
gent. They  that  speak  to  children,  assume  a  pretty 
lisping.  Birds  are  caught  by  the  counterfeit  of  their 
own  shrill  notes.  There  is  a  magic  in  the  tongue,  can 
charm  the  wild  man's  motions.  Eloquence  is  a  bridle, 


FORENSIC    ELOQUENCE. 

wherewith  a  wise  man  rides  the  monster  of  the  world 
—the  People !" 

Plato  defines  eloquence  to  be  the  art  of  ruling  the 
minds  of  men,  and  moving  the  passions  and  affections 
of  the  soul,  which,  like  so  many  strings  in  a  musical 
instrument,  require  the  touch  of  a  masterly  and  deli- 
cate hand.  Hamlet  furnishes  a  beautiful  and  forcible 
illustration  of  this  view,  in  his  reflections,  upon  "the 
rehearsal  by  the  players  : — 

"  Is  it  not  monstrous  that  this  player  here, 
But  in  a  fiction — in  a  dream  of  passion, 
Can  force  his  soul  so  to  his  own  conceit, 
That  from  her  workings,  all  his  visage  wans — 
Tears  in  his  eyes — distraction  in  his  aspect — 
A  broken  voice — and  his  whole  functions  suiting, 
With  forms  to  his  conceit — and  all  for  nothing ! 
For  Hecuba ! 

What's  Hecuba  to  him,  or  he  to  Hecuba, 
That  he  should  weep  for  her?    What  would  he  do, 
Had  he  the  motive,  or  the  cue  for  passion 
That  I  have  ?     He  would  drown  the  stage  with  tears, 
And  cleave  the  general  ear  with  horrid  speech ; 
Make  mad  the  guilty,  and  appal  the  free  ; 
Confound  the  ignorant,  and  amaze,  indeed, 
The  very  faculties  of  eyes  and  ears !" 

"The  highest  order  of  eloquence,"  says  Blah',  "is 
always  the  offspring  of  passions.  A  man  may  con- 
vince, and  even  persuade  others  to  act,  by  mere  reason 
and  argument;  but  that  degree  of  eloquence  which 


164  THE    FORUM. 

gains  the  admiration  of  mankind,  and  properly  consti- 
tutes one  an  orator,  is  never  found  without  warmth  or 
passion.  Passion,  when  in  such  a  degree  as  to  arouse 
and  enkindle  the  mind,  without  throwing  it  out  of  the 
possession  of  itself,  is  universally  found  to  exalt  all 
the  human  powers.  It  renders  the  mind,  infinitely 
more  enlightened,  more  penetrating,  more  vigorous  and 
masterly,  than  in  its  calmer  moments.  A  man  actu- 
ated by  a  strong  passion,  becomes  much  greater  than 
he  is  at  other  times ;  he  is  conscious  of  more  strength 
and  force;  he  utters  greater  sentiments,  conceives 
higher  designs,  and  executes  them  with  a  boldness  and 
felicity,  of  which,  on  other  occasions,  he  would  think 
himself  utterly  incapable." 

But  we  have  higher  authority  than  Quintillian, 
Cicero,  Demosthenes,  Plato,  the  Stagyrite,  or  any 
other  worldly  testimony,  in  support  of  the  importance 
of  eloquence.  Authority  that  can  neither  be  denied 
nor  questioned.  The  High  and  Mighty  One,  in  whose 
divine  government  miracles  are  only  resorted  to  for 
miraculous  purposes,  and  who,  even  in  his  omnipotence, 
submits  to  his  own  just  laws,  substitutes  Aaron  for 
Moses,  simply  because  he  was  more  richly  gifted  with 
the  power  of  persuasion. 

You  will  pardon  me,  for  calling  your  attention  to 
that  passage  of  Holy  Writ,  upon  which  I  reverentially 
rely  for  the  proof  of  this  position.  To  all,  it  is  no 
doubt  familiar,  but  may  still  be  new  in  its  present  ap- 


FORENSIC    ELOQUENCE.  165 

plication.  I  refer  to  portions  of  the  third  and  fourth 
chapters  of  Exodus : 

"  And  God  said  unto  Moses,  I  AM,  that  I  AM.  And 
thus  shalt  thou  say  unto  the  children  of  Israel,  I  Am 
hath  sent  me. 

"  And  Moses  said  unto  the  Lord,  0  my  Lord,  I  am 
not  eloquent,  neither  heretofore,  nor  since  thou  hast 
spoken  to  thy  servant ;  but  I  am  slow  of  speech,  and 
slow  of  tongue. 

"And  the  anger  of  the  Lord  was  kindled  against 
Moses,  and  he  said,  is  not  Aaron  the  Levite,  thy  bro- 
ther ?  I  know  that  he  can  SPEAK  WELL,  and  thou  shalt 
speak  unto  him,  and  put  words  in  his  mouth,  and  I 
will  be  with  thy  mouth  and  his  mouth,  and  teach  you 
what  ye  shall  do. 

"  And  he  shall  be  thy  spokesman  unto  the  people, 
and  he  shall  be  to  thee  instead  of  a  mouth,  and  thou 
shalt  be  to  him  instead  of  God." 

During  the  speech  of  Patrick  Henry  upon  the  sub- 
ject of  British  taxation  and  aggression,  we  are  informed 
that  in  a  transport  of  passion  he  tore  off  his  wig,  and 
in  suddenly  attempting  to  replace  it,  put  it  the  wrong 
side  foremost.  We  may  well  laugh  at  the  cold  descrip- 
tion of  the  occurrence,  when  the  perilous  occasion  has 
gone  by ;  but  wigs  were  no  laughing  matters,  when 
heads  were  in  danger.  This  incident  was  ridiculous 
enough,  it  is  true,  but  its  farcical  character  was  lost 
sight  of  in  the  excitement  of  the  orator,  the  importance 


THE    FORUM. 

of  the  occasion,  and  the  deep  tone  of  feeling  which  it 
was  calculated  to  produce.  It  was,  no  doubt,  much 
more  effective  than  the  artifice  of  Burke,  who,  while 
speaking  upon  the  French  Revolution,  coldly  and  deli- 
berately drew  from  his  breast  a  glittering  dagger,  which 
he  had  there  deposited  for  the  purpose  of  dramatic  effect, 
and  which  led  to  the  shrewd  and  facetious  inquiry  of 
Sheridan,  "Well,  sir,  you  have  brought  the  knife,  but 
where  is  the  fork  ?"  One  of  these  occurrences  was  the 
result  of  passion,  the  other  was  art ;  and  art  of  the 
worst  kind,  for  it  was  insufficient  for  its  own  conceal- 
ment. 

Gesture,  generally,  I  know  is  denominated  action ; 
but  we  can  readily  conceive  of  great  action  without 
any  gesture ;  physical,  without  mental  action,  is  absurd 
and  contemptible.  School  boys,  or  mere  sciolists,  are 
rarely  deficient  in  gesture;  but  they  fail  in  mental 
fervor — "in  forcing  the  soul  to  their  own  conceit." 
The  speech  of  Demosthenes  against  Philip,  is  full  of 
action;  so  is  that  of  Cicero  against  Cataline;  and  in 
this  respect,  the  brilliant  harangue  of  Lord  Chatham 
upon  employing  the  Indians  in  the  American  wTar, 
which  is  so  familiar  to  us  all,  is  not  inferior  to  either. 
No  man  can  read  those  productions,  without  being 
assured  that  their  authors  were  filled  with  the  true 
Promethean  fire. 

We  can,  of  course,  furnish  but  brief  extracts  of 
speeches,  as  illustrative  of  our  text,  but  even  those 


FORENSIC    ELOQUENCE. 

may  serve  to  direct  renewed  attention  to  the  entire 
speeches  referred  to,  and  thereby  obviate  all  occa- 
sion for  commentary,  as  they  sufficiently  speak  for 
themselves.  We  must  be  excused,  if,  in  the  first  place, 
we  introduce  brief  quotations  from  the  famous  Greek 
and  Roman  orators,  in  order  that  they  may  be  com- 
pared with  those  of  the  distinguished  men  of  our  days 
— abroad  and  at  home — which  shall  be  presented  in 
their  turn. 


Peroration.    Philippic  of  Demosthenes,  after  describing  the  ancestry  of 
the  Athenians: — 

•"  Such,  0  men  of  Athens,  were  your  ancestors ;  so  glorious  in  the 
eye  of  the  world ;  so  bountiful  and  munificent  to  their  country;  so 
sparing,  so  modest,  so  self-denying  to  themselves.   What  resemblance 
can  we  find  in  the  present  generation,  of  these  great  men  ?     At  a 
time  when  your  ancient  competitors  have  left  you  a  clear  stage; 
when  the  Lacedemonians  are  disabled;  the  Thebans  employed  in 
troubles  of  their  own;  when  no  other  state  whatever  is  in  a  condi- 
tion to  rival  or  molest  you ;  in  short,  when  you  are  at  full  liberty ; 
when  you  have  the  opportunity  and  the  power  to  become  once  more 
the  sole  arbiters  of  Greece ;  you  permit,  patiently,  whole  provinces 
to  be  wrested  from  you;  you  lavish  the  public  money  in  scandalous 
and  obscure  uses ;  you  suffer  your  allies  to  perish  in  time  of  peace, 
whom  you  preserved  in  time  of  war ;  and  to  sum  up  all,  you  your- 
selves, by  your  mercenary  court,  and  servile  resignation  to  the 
will  and  pleasure  of  designing,  insidious  leaders,  abet,  encourage 
and  strengthen  the  most  dangerous  and  formidable  of  your  enemies. 
Yes,  Athenians,  I  repeat  it,  you  yourselves,  are  the  contrivers  of  your 

own  ruin.    Lives  there  a  man  who  has  confidence  enough  to  deny  it  ? 


168  THE    FORUM. 

Let  him  arise  and  assign,  if  he  can,  any  other  cause  of  the  success  and 
prosperity  of  Philip.  '  But,'  you  reply,  '  what  Athens  may  have  lost 
in  reputation  abroad,  she  has  gained  in  splendor  at  home.  Was 
there  ever  a  greater  appearance  of  prosperity  ?  A  greater  face  of 
plenty?  Is  not  the  city  enlarged  ?  Are  not  the  streets  better  paved, 
houses  repaired  and  beautified  ?'  Away  with  such  trifles ;  shall  I 
be  paid  with  counters  ?  An  old  square  new  vamped  up !  A  foun- 
tain! An  aqueduct!  Are  these  acquisitions  to  brag  of?  Cast 
your  eye  upon  the  magistrate,  under  whose  ministry  you  boast  these 
precious  improvements.  Behold  the  despicable  creature,  raised,  all 
at  once,  from  dirt  to  opulence;  from  the  lowest  obscurity  to  the 
highest  honors.  Have  not  some  of  these  upstarts  built  private 
houses  and  seats,  vicing  with  the  most  sumptuous  of  our  public 
palaces  ?  And  how  have  their  fortunes  and  their  power  increased, 
but  as  the  commonwealth  has  been  ruined  and  impoverished  ? 

"  To  what  are  we  to  impute  these  disorders  ?  And  to  what  cause 
assign  the  decay  of  a  state,  so  powerful  and  flourishing  in  past  times? 
The  reason  is  plain — the  servant  is  now  become  the  master.  The 
magistrate  was  then  subservient  to  the  people;  punishments  and 
rewards  were  properties  of  the  people ;  all  honors,  dignities  and  pre- 
ferments, were  disposed  by  the  voice  and  favour  of  the  people ;  but 
the  magistrate  now  has  usurped  the  right  of  the  people,  and  exer- 
cises an  arbitrary  authority  over  his  ancient  and  natural  lord.  You, 
miserable  people !  (the  meanwhile  without  money,  without  friends,) 
from  being  the  ruler,  are  become  the  sen-ant ;  from  being  the  mas- 
ter, the  dependent ;  happy  that  these  governors,  into  whose  hands 
you  have  thus  resigned  your  own  power,  are  so  good  and  so  gracious 
as  to  continue  your  poor  allowance  to  see  plays. 

"Believe  me,  Athenians,  if  recovering  from  this  lethargy,  you 
would  assume  the  ancient  freedom  and  spirit  of  your  fathers  ;  if  you 
would  be  your  own  soldiers  and  your  own  commanders,  confiding  no 
longer  your  affairs  in  foreign  or  mercenary  hands;  if  you  would 


FORENSIC    ELOQUENCE. 

charge  yourselves  with  your  own  defence,  employing  abroad,  for  the 
public,  what  you  waste  in  unprofitable  pleasures  at  home';  the  world 
might,  once  more,  behold  you  making  a  figure  worthy  of  Athenians. 
'  You  would  have  us,  then,  (you  say,)  do  service  in  our  armies,  in 
our  own  persons  j  and  for  so  doing,  you  would  have  the  pensions  we 
receive,  in  time  of  peace,  accepted  as  pay,  in  time  of  war.  Is  it 
thus  we  are  to  understand  you?'  Yes,  Athenians,  'tis  my  plain 
meaning,  I  would  make  it  a  standing  rule,  that  no  person,  great  or 
little,  should  be  the  better  for  the  public  money,  who  should  grudge 
to  employ  it  for  the  public  service.'  " 


Again : — 


"When,  0,  my  countrymen!  when  will  you  exert  your  vigor? 
When  roused  by  some  event !  When  forced  by  some  necessity ! 
What,  then,  are  we  to  think  of  our  present  condition  ?  To  freemen, 
the  disgrace  attending  on  misconduct,  is,  in  my  opinion,  the  most 
urgent  necessity.  Or,  say,  is  it  your  sole  ambition  to  wander  through 
the  public  places,  each  inquiring  of  the  other,  'what  new  advices?' 
Can  any  thing  be  more  new,  than  that  a  man  of  Macedon  should 
conquer  the  Athenians,  and  give  law  to  Greece  ?  Is  Philip  dead  ? 
No,  but  in  great  danger.  '  How  are  you  concerned  in  those  rumors? 
Suppose  he  should  meet  some  fatal  stroke,  you  would  soon  raise  up 
another  Philip,  if  your  interests  are  thus  regarded.  For  it  is  not  to 
his  own  strength,  that  he  so  much  owes  his  elevation,  as  to  our 
supineness.' " 

Peroration  of  Cicero  for  MUo : — 

"  On  you,  on  you  I  call,  ye  heroes,  who  have  lost  so  much  blood 
in  the  service  of  your  country !  To  you,  ye  centurions,  ye  soldier*fe, 
I  appeal,  in  this  hour  of  danger  to  the  best  of  men,  and  bravest  of 

VOL.  I. 12 


170  THE    FORUM. 

citizens  !  While  you  are  looking  on,  while  you  stand  here  with  arms 
in  your  hands,  and  guard  this  tribunal,  shall  virtue  like  this  be 
expelled,  exterminated,  cast  out  with  dishonor?  By  the  immortal 
gods,  I  wish  (pardon  me,  0  my  country !  for  I  fear,  what  I  shall 
gay,  out  of  a  pious  regard  for  Milo,  may  be  deemed  impiety  against 
thee,)  that  Clodius  not  only  lived,  but  were  praetor,  consul,  dictator, 
rather  than  be  witness  to  such  a  scene  as  this.  Shall  this  man,  then, 
who  was  born  to  save  his  country,  die  any  where  but  in  his  country  ? 
Shall  he  not,  at  least,  die  in  the  service  of  his  country  ?  Will  you 
retain  the  memorials  of  his  gallant  soul,  and  deny  his  body  a  grave 
in  Italy  ?  Will  any  person  give  his  voice  for  banishing  a  man  from 
this  city,  whom  every  city  on  earth  would  be  proud  to  receive  within 
its  walls  ?  Happy  the  country  that  shall  receive  him  !  Ungrateful 
this,  if  it  shall  banish  him !  Wretched,  if  it  should  lose  him !  But 
I  must  conclude — my  tears  will  not  allow  me  to  proceed,  and  Milo 
forbids  tears  to  be  employed  in  his  defence.  You,  my  Lords,  I  beseech 
and  adjure,  that,  in  your  decision,  you  would  dare  to  act  as  you 
think.  Trust  me,  your  fortitude,  your  justice,  your  fidelity,  will 
more  especially  be  approved  of  by  him,  who,  in  his  choice  of 
judges,  has  raised  to  the  bench,  the  bravest,  the  wisest,  and  the 
best  of  men." 

After  describing  the  "  rash  levied  numbers"  of  Cata- 
line,  Cicero  proceeds  to  contrast  their  character  and 
condition,  with  those  of  the  regular  Roman  army : — 

Second  Graf  ion  of  Cicero  against  Caialine. 

"  Against  these  gallant  troops  of  your  adversary,  prepare,  0 
Romans,  your  garrisons  and  armies ;  and  first,  to  that  battered  and 
tf aimed  gladiator,  oppose  your  consuls  and  generals;  next,  against 
that  outcast,  miserable  crew,  lead  forth  the  flo\ver  and  strength  of 

- 


FORENSIC    ELOQUENCE. 

all  Italy.  The  walls  of  our  colonies  and  free  towns  will  easily  resist 
the  efforts  of  Cataline's  rustic  troops.  But  I  ought  not  to  run  the 
parallel  further,  or  compare  your  other  resources,  preparations  and 
defences,  to  the  indigence  and  nakedness  of  that  robber.  But  if 
omitting  all  those  advantages  of  which  we  are  provided,  and  he  des- 
titute— as  the  Senate,  the  Roman  knights,  the  people,  the  city,  the 
treasury,  the  public  revenue,  all  Italy,  all  the  provinces,  foreign 
States — I  say,  if  omitting  all  these,  we  only  compare  the  contending 
parties  between  themselves,  it  will  soon  appear  how  very  low  our 
enemies  are  reduced.  On  the  one  side,  modesty  contends;  on  the 
other,  petulance — here  chastity,  there  pollution ;  here  integrity,  there 
treachery ;  here  piety,  there  profanity ;  here  resolution,  there  rage ; 
here  honor,  there  baseness ;  here  moderation,  there  unbridled  licen- 
tiousness :  in  short,  equity,  temperance,  fortitude,  prudence,  struggle 
with  iniquity,  luxury,  cowardice  and  rashness ;  every  virtue  with 
every  vice.  Lastly,  the  contest  lies  between  wealth  and  indigence, 
sound  and  depraved  reason,  strength  of  understanding  and  frenzy; 
in  fine,  between  well-grounded  hope  and  the  most  absolute  despair. 
In  such  a  conflict  and  struggle  as  this — was  even  human  aid  to  fail 
— will  not  the  immortal  gods  enable  such  illustrious  virtue  to  tri- 
umph over  such  complicated  vice  ?" 

The  speech  over  the  dead  body  of  Lucretia,  ascribed 
by  Livy  to  Junius  Brutus,  is  for  action,  superior 
to  either  of  those  to  which  we  have  adverted.  Though 
familiar,  it  is  not  the  less  appropriate  to  our  purpose. 

"  Yes,  noble  lady,  I  swear  by  that  blood  which  was  once  so  pure, 
and  which  nothing  but  royal  villany  could  have  polluted,  that  I  will 
pursue  Lucius  Tarquinius,  the  Proud,  his  wicked  wife,  and  their  chil- 
dren, with  fire  and  sword ;  nor  will  I  ever  suffer  any  of  that  family, 
or  of  any  other  family  whatever,  to  reign  King  in  Rome. — Ye  gods,  I 


172  THE    FORUM. 

call  you  to  witness  this,  my  oath! — There,  Romans,  turn  your  eyes  to 
that  sad  spectacle — the  daughter  of  Lucretius — Collatinus'  wife — 
she  died  by  her  own  hand.  See  there !  a  noble  lady,  whom  the  lust 
of  a  Tarquin  reduced  to  the  necessity  of  becoming  her  own  execu- 
tioner, to  attest  her  innocence.  Hospitably  entertained  by  her,  as 
the  kinsman  of  her  husband,  Sextus,  her  perfidious  guest ,  became 
her  brutal  ravisher.  The  chaste,  the  generous  Lucretia,  could  not 
survive  the  insult — glorious  woman  !  But  once  treated  as  a  slave, 
she  thought  life  no  longer  to  be  endured.  Lucretia,  as  a  woman, 
disdained  life  that  depended  on  a  tyrant's  will,  and  shall  we — shall 
men,  with  such  an  example  before  our  eyes — and  after  five  and 
twenty  years  of  ignominious  servitude — shall  we,  through  a  fear  of 
dying,  defer  one  single  instant,  to  assert  our  liberty,"  &c. 

Lord  Mansfield,  on  the  Delays  of  Justice,  by  the  privilege  of  Parliament. 

il  I  come  now  to  speak  upon  what,  indeed,  I  would  have  gladly 
avoided,  had  I  not  been  particularly  pointed  at,  for  the  part  I  have 
taken  in  this  bill.  It  has  been  said,  by  a  noble  Lord  on  my  left 
hand,  that  I  likewise  am  running  the  race  of  popularity.  If  the 
noble  Lord  means  by  popularity,  that  applause  bestowed  by  after 
ages,  on  good  and  virtuous  actions,  I  have  long  been  struggling  in 
that  race ;  to  what  purpose,  all  trying  time  can  alone  determine ; 
but  if  the  noble  Lord  means  that  mushroom  popularity,  that  is  raised 
without  merit,  and  lost  without  a  crime,  he  is  much  mistaken  in  his 
opinion.  I  defy  the  noble  Lord  to  point  out  a  single  action  of  my 
life,  where  the  popularity  of  the  times  ever  had  the  smallest  influ- 
ence on  my  determinations.  I  thank  God,  I  have  a  more  permanent 
and  steady  rule  for  my  conduct — the  dictates  of  my  own  breast. 
Those  that  have  forgone  that  pleasing  adviser,  and  given  up  the 
mind  to  be  the  slave  of  every  popular  impulse,  I  sincerely  pity :  I 
pity  them  still  more,  if  their  vanity  leads  them  to  mistake  the  shouts 
of  a  mob  for  the  trumpet  of  fame.  Experience  might  inform  them, 


FORENSIC   ELOQUENCE. 

that  many  who  have  been  saluted  with  the  huzzas  of  a  crowd  one 
day,  have  received  their  execrations  the  next ;  and  many,  who,  by 
the  popularity  of  their  times,  have  been  held  up  as  spotless  patriots, 
have  nevertheless  appeared  upon  the  historian's  page,  when  truth  has 
triumphed  over  delusion,  the  assassins  of  liberty.  Why  then,  the 
noble  Lord  can  think  I  am  ambitious  of  present  popularity,  that 
echo  of  folly,  and  shadow  of  renown,  I  am  at  a  loss  to  determine. 
Besides,  I  do  not  know  that  the  bill  now  before  your  Lordships  will 
be  popular;  it  depends  much  upon  the  caprice  of  the  day.  It  may 
not  be  popular  to  compel  people  to  pay  their  debts ;  and,  in  that 
case,  the  present  must  be  a  very  unpopular  bill.  It  may  not  be 
popular,  neither,  to  take  away  any  of  the  privileges  of  parliament : 
for  I  very  well  remember,  and  many  of  your  Lordships  may  remem- 
ber, that  not  long  ago,  the  popular  cry  was  for  the  extension  of  pri- 
vilege ;  and  so  far  did  they  carry  it  at  that  time,  that  it  was  said 
that  the  privilege  protected  members  even  in  criminal  actions ;  nay, 
such  was  the  power  of  popular  prejudices  over  weak  minds,  that  the 
very  decisions  of  some  of  the  courts  were  tinctured  with  that  doc- 
trine. It  was,  undoubtedly,  an  abominable  doctrine ;  I  thought  so 
then,  and  think  so  still ;  but  nevertheless,  it  was  a  popular  doctrine, 
and  came  immediately  from  those  who  were  called  the  friends  of 
liberty ;  how  deservedly,  time  will  show.  True  liberty,  in  my  opinion, 
can  only  exist  when  justice  is  equally  administered  to  all ;  to  the 
king,  and  to  the  beggar.  Where  is  the  justice,  then,  or  where  is  the 
law,  that  protects  a  member  of  parliament,  more  than  any  other 
man,  from  the  punishment  due  to  his  crimes  ?  The  laws  of  his 
country  allow  of  no  place,  nor  any  employment,  to  be  a  sanctuary 
for  crimes ;  and  where  I  have  the  honor  to  sit  as  judge,  neither 
royal  favor,  nor  popular  applause,  shall  ever  protect  the  guilty." 


174 


THE    FORUM. 


Lord  Chatham's  speech  in  the  British  Parliament,  in  praise  of  the  Con- 
gress at  Philadelphia. 

"  When  your  lordships  look  at  the  papers  transmitted  to  us  from 
America;  when  you  consider  their  decency,  firmness,  and  wisdom, 
you  cannot  but  respect  their  cause,  and  wish  to  make  it  your  own. 
For  myself,  I  must  declare  and  avow,  that  in  all  my  reading  and 
observation,  (and  it  has  been  my  favorite  study;  I  have  read  Thu- 
cydides,  and  have  studied  and  admired  the  master  States  of  the 
world ;)  I  say  I  must  declare,  that,  for  solidity  of  reasoning,  force  of 
sagacity,  and  wisdom  of  conclusion,  under  such  a  complication  of 
difficult  circumstances,  no  nation,  or  body  of  men,  can  stand  in  pre- 
ference to  the  general  congress  of  Philadelphia.  I  trust  it  is  obvious 
to  your  lordships,  that  all  attempts  to  impose  servitude  upon  such 
men,  to  establish  despotism  over  such  a  mighty  continental  nation, 
must  be  vain,  must  be  fatal. 

"We  shall  be  forced,  ultimately,  to  retract;  let  us  retract  while 
we  can,  not  when  we  must.  I  say  we  must  necessarily  undo  these 
violent  oppressive  acts.  They  MUST  be  repealed.  You  WILL  repeal 
them.  I  pledge  myself  for  it,  that  you  will  in  the  end  repeal  them. 
I  stake  my  reputation  on  it.  I  will  consent  to  be  taken  for  an  idiot, 
if  they  are  not  finally  repealed. 

"  Avoid,  then,  this  humiliating,  disgraceful  necessity.  With  a  dig- 
nity becoming  your  exalted  situation,  make  the  first  advances  to  con- 
cord, to  peace  and  happiness  :  for  it  is  your  true  dignity  to  act  with 
prudence  and  justice.  That  you  should  first  concede,  is  obvious 
from  sound  and  rational  policy.  Concession  comes  with  better  grace 
and  more  salutary  effects  from  superior  power;  it  reconciles  superi- 
ority of  power  with  the  feelings  of  men ;  and  establishes  solid  con- 
fidence on  the  foundations  of  affection  and  gratitude. 

"  Every  motive,  therefore,  of  justice  and  of  policy,  of  dignity  and 
of  prudence,  urges  you  to  allay  the  ferment  in  America,  by  a  remo- 


FORENSIC    ELOQUENCE. 

val  of  your  troops  from  Boston ;  by  a  repeal  of  your  acts  of  parlia- 
ment ;  and  by  demonstration  of  amicable  dispositions  towards  your 
colonies.  On  the  other  hand,  every  danger  and  every  hazard  im- 
pend, to  deter  you  from  perseverance  in  your  present  ruinous  mea- 
sures. Foreign  war  hanging  over  your  heads  by  a  slight  and  brittle 
thread ;  France  and  Spain  watching  your  conduct,  and  waiting  for 
the  maturity  of  your  errors ;  with  a  vigilant  eye  to  America,  and 
the  temper  of  your  colonies,  more  than  to  their  own  concerns,  be 
they  what  they  may. 

"  To  conclude,  my  lords ;  if  the  ministers  thus  persevere  in  mis- 
advising and  misleading  the  king,  I  will  not  say  that  they  can  alien- 
ate the  affections  of  his  subjects  from  his  crown ;  but  I  will  affirm, 
that  they  will  make  the  crown  not  worth  his  wearing :  I  will  not  say 
that  the  king  is  betrayed ;  but  I  will  pronounce,  that  the  kingdom  is 
undone." 


The  Peroration  of  Edmund  Burke's  speech,  on  the   impeachment  of 
Warren  Hastings. 

Extract  from  Mr.  Burke's  speech  in  Westminster  Hall,  on  the  sixth  day  of 
the  trial,  15th  Feb.,  1788. 

"My  Lords^ — We  have  now  laid  before  you  the  whole  conduct  of 
Warren  Hastings,  foul,  wicked,  nefarious,  and  cruel  as  it  has  been, 
and  we  ask,  what  is  it,  that  we  want  here  to  a  great  act  of  national 
justice  ?  Do  we  want  a  cause,  my  lords  ?  You  have  the  cause  of 
oppressed  princes,  of  undone  women  of  the  first  rank,  of  desolated 
provinces,  and  of  wasted  kingdoms. 

"  Do  you  want  a  criminal,  my  lords  ?  When  was  there  so  much 
iniquity  ever  laid  to  the  charge  of  any  one  ? — No,  my  lords,  you 
must  not  look  to  punish  any  other  such  delinquent  from  India. 
Warren  Hastings  has  not  left  substance  enough  in  India  to  nourish 
such  another  delinquent. 


THE    FORUM. 

"  My  lords,  is  it  a  prosecutor  you  want  ? — You  have  before  you 
the  Commons  of  Great  Britain  as  prosecutors;  and,  I  believe,  my 
lords,  that  the  sun,  in  his  beneficent  progress  round  the  world,  does 
not  behold  a  more  glorious  sight  than  that  of  men,  separated  from 
a  remote  people  by  the  material  bonds  and  barriers  of  nature,  united 
by  the  bond  of  a  social  and  moral  community; — all  the  Commons 
of  England  resenting,  as  their  own,  the  indignities  and  cruelties  that 
are  offered  to  all  the  people  of  India. 

"  Do  you  want  a  tribunal  ?  My  lords,  no  example  of  antiquity, 
nothing  in  the  modern  world,  nothing  in  the  range  of  human  imagi- 
nation, can  supply  us  with  a  tribunal  like  this.  My  lords,  here  we 
see,  virtually,  in  the  mind's  eye,  that  sacred  majesty  of  the  crown, 
under  whose  authority  you  sit,  and  whose  power  you  exercise.  We 
have  here  the  heir  apparent  to  the  crown.  We  have  here  all  the 
branches  of  the  royal  family,  in  a  situation  between  majesty  and 
subjection.  My  lords,  we  have  a  great  hereditary  peerage  here : 
those,  who  have  their  own  honor,  the  honor  of  their  ancestors,  and 
of  their  posterity,  to  guard.  We  have  here  a  new  nobility,  who  have 
risen,  and  exalted  themselves  by  various  merits,  by  great  military 
services,  which  have  extended  the  fame  of  this  country  from  the 
rising  to  the  setting  sun.  We  have  persons  exalted  from  the  prac- 
tice of  the  law,  from  the  place  in  which  they  administered  high, 
though  subordinate  justice,  to  a  seat  here,  to  enlighten  with  their 
knowledge,  and  to  strengthen  with  their  votes,  those  principles  which 
have  distinguished  the  courts  in  which  they  have  presided.  My  lords, 
you  have  here  also  the  lights  of  our  religion ;  you  have  the  bishops 
of  England.  You  have  the  representatives  of  that  religion,  which 
gays,  that  their  God  is  love,  that  the  very  vital  spirit  of  their  insti- 
tution is  charity." 


FORENSIC    ELOQUENCE.  177 

CHARITABLE    USES. 

Extract  from  the  argument  of  Horace  Binney,  in  the  case  of  Girard's 
Will,  in  the  Supreme  Court  of  the  United  States,  Jan.  Term,  1844. 

"  It  has  been  said  that  the  law  of  England  derived  the  doctrine 
of  charitable  uses  from  the  Roman  Civil  Law.  Lord  Thurlow  has 
said  it,  and  there  are  others  who  have  said  the  same  thing.  It  is 
by  no  means  clear.  It  may  very  well  be  doubted.  It  is  not  worth 
the  time  necessary  for  the  investigation.  One  of  the  worst  doctrines, 
as  formerly  understood  in  England,  the  doctrine  of  Cy-pres,  has 
been  derived  from  the  Roman  law,  and  perhaps  little  else.  Constan- 
tine  certainly  sanctioned  what  are  called  pious  uses.  A  successor, 
Valentinian,  restrained  donations  to  churches,  without  disturbing 
donations  to  the  poor ; — and  Justinian  abolished  the  restraint,  and 
confirmed  and  established  such  uses  generally  and  forever. 

"  But  where  did  the  Roman  Law  get  them  ?  We  might  infer  the 
source,  from  the  fact  that  Constantine  was  the  first  Christian  Em- 
peror,— that  Valentinian  was  an  Arian,  a  sagacious,  bold  and  cruel 
soldier,  but  the  tolerant  friend  of  Jews  and  Pagans,  and  a  persecu- 
tor of  the  Christians, — and  that  Justinian,  '  the  vain  titles  of  whose 
victories  are  crumbled  into  dust,  while  the  name  of  the  Legislator  is 
inscribed  on  a  fair  and  everlasting  monument,'  obtains,  with  this 
praise  from  the  Historian  of  the  Decline  and  Fall,  the  more  enviable 
sneer,  of  being  at  all  times  the  'pious,'  and  at  least  in  his  youth, 
the  '  orthodox  Justinian.'  We  might  infer  it  still  better  from  that 
section  of  the  code,  which,  after  liberating  gifts  to  orphan-houses  and 
other  religious  and  charitable  institutions,  '  a  lucrativorum  inscrip- 
tionibusj  and  confining  the  effect  of  these  charges  to  other  persons, 
concludes  with  the  inquiries — '  Cur  enim  non  faciamus  discrimen 
inter  res  divinas  et  humanas  ?  Et  quare  non  competens  prerogativa 
cdesti  favor i  conservetur  ?' 

"What  are  pious  uses!     They  are  uses  destined  to  some  work  of 


178  THE    FORUM. 

benevolence.  Whether  they  relate  to  spiritual  or  temporal  concerns, 
— whether  their  object  be  to  propagate  the  doctrines  of  religion,  to 
relieve  the  sufferings  of  humanity,  or  to  promote  those  grave  and 
sober  interests  of  the  public,  which  concern  the  well  being  of  the 
people  at  all  times, — all  of  them  come  under  the  name  of  '  disposi- 
tiones  pii  testatoris? 

"  They  come,  then,  from  that  religion  to  which  Constantine  was 
converted,  which  Yalentinian  persecuted,  and  which  Justinian  more 
completely  established ;  and  from  the  same  religion  they  would  have 
come  to  England,  and  to  these  States,  though  the  Pandects  had  still 
slumbered  at  Amalfi,  or  Rome  had  remained  forever  trodden  down 
by  the  barbarians  of  Scythia  and  Germany.  I  say  the  legal  doc- 
trine of  pious  uses  comes  from  the  Bible.  I  do  not  say  that  the 
principle  and  duty  of  charity,  are  not  derived  from  natural  religion 
also.  Individuals  may  have  taken  it  from  this  source.  The  law  has 
taken  it  in  all  cases  from  the  revealed  will  of  God. 

"  What  is  a  charitable  or  pious  gift,  according  to  that  religion  ?  It 
is  whatever  is  given  for  the  love  of  God,  or  for  the  love  of  your 
neighbor,  in  the  catholic  and  universal  sense, — given  from  these  mo- 
tives, and  to  these  ends, — free  from  the  stain  or  taint  of  every  con- 
sideration that  is  personal,  private  or  selfish. 

*  "  The  domestic  relations,  it  is  not  to  be  doubted,  are  most  fre- 
quently a  bond  of  virtue,  as  they  are  also  the  source  of  some  of  the 
most  delightful  as  well  as  ennobling  emotions  of  the  heart.  In  the 
same  class,  both  for  purity  and  influence  on  human  happiness,  we 
may  generally  place  the  relations  of  kindred  by  blood  or  alliance, 
our  friends  and  benefactors,  those  of  whom  we  are  a  part,  or  who 
are  an  acknowledged  part  of  ourselves.  There  is  nothing  in  the 
Bible  to  sever  any  of  these  relations,  if  cultivated  wisely,  and  in  due 
subordination  to  greater  duties ;  nor  much,  with  perhaps  an  excep- 
tion or  two,  to  enjoin  a  special  observance  of  them.  One  of  them 
has  the  sanction  of  a  commandment  in  the  second  table,  to  make 


FORENSIC    ELOQUENCE.  179 

children  remember  their  parents,  who  need  no  command  to  remem- 
ber them:  and  another  is  defended  by  injunctions,  against  infirmi- 
ties, which,  while  they  are  its  cement,  are  often  its  ruin.  All  of  them 
are  deeply  rooted  in  our  nature.  Instances  are  not  wanting  of  their 
vivid  influence  between  men  whose  nature  is  discolored  by  the  dark- 
est stains;  and  without  any  emphatic  sanctions  in  the  revealed  Word, 
they  are  perhaps  more  than  sufficiently  invigorated  by  natural  im- 
pulses, which  for  good  or  evil  rarely  or  never  sleep.  The  feelings 
which  attend  them  are  not  unmixed  with  benevolence — nay,  they  are 
often  deeply  tinctured  with  it ;  but  benevolence  does  not  bear  su- 
preme rule  among  them,  nor  is  it  their  sole  guide  and  governor.  It 
is  not  to  be  forgotten  by  the  Christian  moralist,  that  although  the 
ties  which  bind  men  together  in  these  narrower  relations,  are  neces- 
sary to  their  happiness,  and  therefore  to  their  virtue,  the  due  observ- 
ance of  the  relations  themselves  is  not  that  which  the  Gospel  meant 
chiefly  to  inculcate  upon  man.  Father  and  mother,  son  and  daugh- 
ter, husband  and  wife,  master  and  servant,  kinsmen,  friends,  bene- 
factors and  dependents, — while  such  relations  bind  individuals  toge- 
ther, they  often  break  society  into  sections,  and  deny  the  larger 
claims  of  human  brotherhood.  They  are  an  expansion,  and  some- 
times little  else,  of  the  love  of  self.  This  is  in  many  instances  their 
centre  and  their  circumference.  The  gospel  was  designed  to  give 
man  a  truer  centre,  and  a  larger  circumference ;  to  wean  him  from 
self  and  selfish  things — even  from  selfish  virtues,  which  are  'of  the 
earth,  earthy,' — to  make  the  intensity  of  his  self-love  the  standard 
of  his  love  of  human  kind,  and  to  build  him  up  for  heaven,  upon 
that  which  is  the  foundation  of  the  law  and  the  prophets,  the  love 
of  God  and  the  love  of  his  neighbor. 

"  Here  are  the  two  great  principles  upon  which  charitable  or  pious 
uses  depend.  The  love  of  God  is  the  basis  of  all  that  are  bestowed 
for  his  honor,  the  building  up  of  his  church,  the  support  of  his  min- 
isters, the  religious  instruction  of  mankind.  The  love  oj  his  neigh- 


THE    FORUM. 

for,  is  the  principle  that  prompts  and  consecrates  all  the  rest.  The 
currents  of  these  two  great  affections  finally  run  together,  and  they 
are  at  all  times  so  near,  that  they  can  hardly  be  said  to  be  separated. 
The  love  of  one's  neighbor,  leads  the  heart  upward  to  the  common 
Father  of  all,  and  the  love  of  God  leads  it  through  him  to  all  his 
children.  The  distinction  between  the  two  descriptions  of  charities, 
the  doctrinal  and  the  practical,  or  as  they  may  with  more  propriety 
be  called,  the  religious  and  the  social,  is  one,  however,  that  Christi- 
anity can  hardly  be  said  to  enforce,  since  all  its  doctrines  are  practi- 
cal, and  all  the  charities  it  enjoins  are  religious ;  but  it  is  of  some 
moment  in  the  law,  as  may  hereafter  be  perceived. 

"But  who  is  my  neiglibort  It  was,  perhaps,  difficult  to  make  a 
Jew,  a  Jewish  lawyer  especially,  whose  profession  was  not  the  best 
in  the  world  to  enlarge  his  heart — it  might  have  been  difficult  for 
some  teachers  to  make  such  a  Jew  understand  that  Ite  was  neighbor 
to  a  Samaritan,  a  schismatic,  with  whom  the  Jews  '  had  no  dealings;' 
but  it  was  not  at  all  difficult  to  make  him  confess,  by  the  voice  of  his 
own  self-love  that  a  Samaritan  was  neighbor  to  a  Jew.  A  Jew, 
whose  brother  had  fallen  among  thieves,  who  had  stripped  him  of 
his  raiment,  and  wounded  him,  and  left  him  half  dead,  was  not  slow 
to  confess,  that  he  that  showed  mercy  on  him,  was  his  neighbor,  even 
though  he  was  a  Samaritan. 

"  Even  the  disciples  of  the  Great  Teacher,  the  fishermen  from  the 
strand  of  Genesareth,  who,  from  their  station,  and  the  vicissitudes  of 
their  calling,  would  seem  to  have  been  more  than  others  in  sympathy 
with  the  unprotected  and  unprovided  of  the  earth,  were  not  quick  to 
learn  this  great  lesson.  An  outcast  from  the  coast  of  Israel,  a  Ca- 
naanite,  who  sought  relief  for  her  demoniac  daughter,  though  she 
came  with  the  strongest  claim  that  humanity  ever  makes  for  sympa- 
thy and  succor — a  wretched  mother  imploring  aid  for  her  afflicted 
child — received  from  them  nothing  but  '  send  her  away,  for  she  crieth 
after  us.'  The  sentiment  in  their  hearts,  their  Master,  preparing  the 


FORENSIC    ELOQUENCE. 

lesson  for  them,  seems  to  have  put  into  words :  t  It  is  not  meet  to 
take  the  children's  bread,  and  to  cast  it  to  dogs.'  But  when  the 
reply  came — '  Truth,  Lord,  yet  the  dogs  eat  of  the  crumbs  which 
fall  from  their  master's  table' — the  reproof  of  the  misjudging  disci- 
ples, and  the  restoration  of  the  wretched  demoniac,  were  conveyed 
by  the  same  answer :  '  Oh  woman,  great  is  thy  faith,  be  it  unto  thee 
even  as  thou  wilt.' 

"  Lesson  after  lesson  was  designed  to  lead  the  Jew  from  the  pre- 
judices of  his  narrow  family,  to  '  all  the  kindreds  upon  earth,'  and 
to  open  his  heart  to  even  the  proscribed  Gentile,  instead  of  suffering 
none  to  enter  but  those  who  held  to  him  the  personal  relations,  by 
which  his  own  infirmities  were  cherished  and  confirmed — to  lead  him 
to  imitate  that  celestial  mercy  which  sends  the  rain  upon  the  unjust, 
and  '  is  kind  to  the  unthankful  and  to  the  evil,' — to  impel  him,  in 
fine,  to  love  his  enemies,  and  to  do  good  unto  all  men,  as  his  brethren 
of  one  descent  from  the  same  Father  in  heaven.  ( He  that  loveth 
father  and  mother  more  than  me,  is  not  worthy  of  me  :  and  he  that 
loveth  son  or  daughter  more  than  me,  is  not  worthy  of  me.'  '  My 
mother  and  my  brethren  are  these  which  hear  the  word  of  God  and 
do  it.'  Such  was  the  language  of  Christ  to  those  who  were  prone 
to  think,  that  the  love  of  their  own  blood,  or  of  their  own  nation, 
was  the  highest  attainment  of  virtue. 

"  The  great  final  illustration  of  the  principle  of  charity,  is  given 
as  almost  the  last  act  of  the  ministry  of  Christ,  when  he  prefigured 
the  gathering  of  all  nations,  and  the  separation  of  one  from  another, 
as  a  shepherd  divides  the  sheep  from  the  goats.  To  those  on  his 
right  hand  the  king  shall  say — '  I  was  an  hungered,  and  ye  gave  me 
meat :  I  was  thirsty,  and  ye  gave  me  drink  :  I  was  a  stranger,  and 
ye  took  me  in  j  naked,  and  ye  clothed  me ;  sick,  and  ye  visited  me : 
I  was  in  prison,  and  ye  came  unto  me.'  And  when  the  righteous, 
unconscious  of  this  personal  ministration  to  his  wants,  say,  'Lord, 
when?'  the  answer  consummates  the  lesson,  and  leaves  it  for  the  in- 


THE    FORUM. 

struction  of  tiie  living  upon  earth,  as  it  is  to  be  pronounced  for  their 
beatitude  in  heaven :  *  Inasmuch  as  ye  have  done  it  to  one  of  tfie 
least  of  these  my  brethren ,  ye  have  done  it  unto  me.' 

11  It  is  not,  therefore,  in  gifts  to  the  beloved  relation,  the  faithful 
friend,  the  personal  benefactor,  the  personal  dependent,  the  known, 
the  individuated,  whether  beloved  for  merit,  from  gratitude,  by  per- 
sonal association,  or  in  reciprocation  of  good  offices,  that  we  are  to 
look  for  acts  of  cJiarity.  These  have  their  personal  motives  and 
their  personal  ends.  We  must  go  out  of  this  narrow  circle,  where 
sometimes  self-love  is  all  that  kindles  our  emotions,  and  perhaps 
always  gives  to  them  the  warmth  which  we  mistake  for  a  nobler  fire, 
into  the  larger  circle  of  human  brotherhood — the  unrelated  by  any 
nearer  affinity — the  naked,  the  hungry,  the  sick,  the  stranger  and 
the  captive — and  must  give  to  them,  in  humble  reverence,  and  in 
faint  imitation,  of  that  divine  beneficence,  that  gives  every  thing  to 
us.  This  alone,  in  the  sense  of  Scripture,  and  in  the  sense  of  law 
also,  is  a  charitable  gift. 

"  Nor  is  the  extension  of  the  hand  to  the  wayside  mendicant,  or 
the  administration  of  succor  to  the  traveller  who  has  just  fallen 
among  thieves  near  our  path,  or  that  occasional  relief  which  feeling 
rather  than  principle  prompts,  to  the  distressed  who  meet  our  eyes, 
a  compliance  with  the  duty  which  the  gospel  enjoins.  Provision  for 
the  day  of  need — accumulation  for  future  necessity — a  provident 
forecast  for  those  who  can  have  none  for  themselves — a  preparation 
for  our  brethren  under  the  gospel,  such  as  we  should  make  for  our 
children  and  brothers  by  blood — all  these  are  not  more  the  sugges- 
tion of  reason,  than  they  are  the  command  of  religion.  The  apos- 
tolical direction  to  the  churches  was  distinct  and  reiterated.  'Upon 
the  first  day  of  the  week  let  every  one  of  you  lay  by  him  in  store, 
as  God  hath  prospered  him,  that  there  be  no  gatherings  when  I 
come.  And  when  I  come,  whomsoever  ye  shall  approve  by  your 
letters,  them  will  I  send  to  bring  your  liberality  unto  Jerusalem. 


FORENSIC    ELOQUENCE. 

And  if  it  be  meet  that  I  go  also,  tlvey  s/tall  go  with  me.'  St.  Paul, 
himself,  was  a  trustee  for  charitable  uses,  and  by  his  injunction  and 
example,  gave  the  highest  sanctity  to  both  the  charity  and  the 
trust. 

"  It  is  by  no  means  in  the  Gospel  that  this  provision  for  the  help- 
less and  unknown  is  first  announced,  though  it  is  there  that  the  pre- 
cept has  its  greatest  expansion  and  emphasis.  For  whose  benefit 
was  the  Jewish  command,  'When  thou  cuttest  down  thine  har- 
vest in  the  field,  and  hast  forgot  a  sheaf  in  the  field,  thou  shalt  not 
go  again  to  fetch  it !'  When  the  olive  tree  was  beaten,  for  whose  sake 
was  the  husbandman  commanded  not  to  go  over  the  boughs  again? 
For  whom  was  the  gleaning  of  the  grapes,  after  the  vintage  was 
gathered?  They  were  all  for  the  unknown,  the  unrelated,  the 
unfriended — the  stranger,  the  fatherless,  and  the  widow.  'Thou 
shalt  remember  that  thou  wast  a  bondman  in  the  land  of  Egypt. 
Therefore  I  command  thee  to  do  this  thing.'  l  Thou  shalt  not  glean 
thy  vineyard,  neither  shalt  thou  gather  every  grape  of  thy  vineyard. 
Thou  shalt  leave  them  for  the  poor  and  the  stranger.  I  am  the 
Lord,  your  God.'  '  For  ye  know  the  heart  of  a  stranger,  seeing  ye 
were  strangers  in  the  land  of  Egypt.'  The  appeals  are  constant, 
reiterated,  urgent — they  are  more  than  appeals,  they  are  commands 
directly  addressed  to  the  Jews  by  the  highest  authority,  and  in  the 
dread  Name  itself,  to  extend  their  gifts  and  their  protection  to  the 
unknown  stranger,  the  unfathered  orphan,  and  the  widow. 

"  It  is  this  command  so  clear,  and  sustained  by  such  sanctions,  to 
the  Jews  first,  and  afterwards  to  the  people  of  all  nations,  that  makes 
charitable  uses  a  matter  of  religious  duty,  so  that  to  deny  the  per- 
formance or  the  enjoyment  of  them  to  any  man,  during  his  life,  or  at 
his  death,  or  to  withhold  from  them  the  sanction  and  protection  of 
the  law,  is  to  deny  him  the  exercise  of  one  of  the  most  sacred  rights 
of  conscience.  Next  to  the  worship  of  Almighty  God,  and  as  a  part 
even  of  that  worship  itself,  they  are  esteemed,  and  ever  have  been, 


THE    FORUM. 

as  both  a  duty  and  a  blessing.  They  were  so  promulgated  to  the 
Jews  before  the  coming  of  Christ,  and  they  were  so  taught  and 
enjoined  under  the  new  covenant ;  and  it  is  a  miserable  mistake, 
both  of  their  origin  and  of  their  end,  to  question  them  for  that  un- 
certainty of  particular  object,  which  is  of  their  very  substance  and 
essence." 

John  Sergeant  in  the  same  Case. 

"  When  and  how  did  Christianity  come  into  England  ?  for  when- 
ever that  was,  the  seed  of  the  law  of  charity  came  with  it,  and 
ripened,  and  became  fruitful,  as  it  had  done  at  Rome,  but  without, 
as  far  as  appears,  any  deliberate  apostacy  to  heathenism.  But  here 
it  seems  necessary,  in  a  legal  discussion,  to  rest  this  great  argument, 
strong  as  the  foundations  of  the  world,  upon  the  narrow,  feeble  basis 
of  human  authority.  It  can  be  done  with  more  precision  and  cer- 
tainty as  to  the  law  of  England,  than  as  to  the  civil  law.  A  part 
of  the  law  of  England  is  the  natural  and  revealed  will  of  God. 
The  Scriptures  of  the  Old  and  New  Testament  contain  the  revela- 
tion. This,  we  understand  from  Blackstone,  is  part  of  the  ancient 
common  law  of  England.  We  must  bear  it  in  mind  when  we 
come  to  speak  of  the  common  law  of  Pennsylvania,  derived  from 
England. 

"When  did  this  become  a  part  of  the  law  of  England  ?  We 
might  answer  the  question,  as  well  as  that  about  the  law  of  charity, 
by  asking  another — when  was  it  not  a  part  ?  It  is  sufficient  that  it 
is  part  of  the  common  law.  Does  any  one  believe  that  it  became  so 
by  the  statute. of  43d  Elizabeth?  The  first  dispensation  was  to  one 
people.  They  might  well  deem  themselves  honored  above  all  the 
nations  of  the  earth,  and  especially  because  to  them  were  entrusted 
the  oracles  of  truth.  They  did  not  seek  to  make  proselytes,  though 
gome  proselytes  there  were,  of  two  descriptions.  Their  religion  was 
not  communicable  to  nations  or  people.  In  their  dispersion,  they 


FORENSIC    ELOQUENCE. 

have  been  scattered  among  all  nations,  but  they  are  still  a  people  by 
themselves,  and  their  religion  serves  to  distinguish  them  from  all 
other  people,  so  that  now,  after  so  many  ages  of  dispersion,  the  order 
of  Providence  requiring,  they  could  be  brought  together  again,  with 
certainty,  without  any  miraculous  creation  of  power.  This  is  the 
continued  miracle  of  their  existence.  It  is  needless  to  add,  that  as 
a  religion  of  the  people,  this  never  came  into  England.  Christianity 
is  believed  by  some  to  have  been  introduced  into  Britain  nearly  as 
soon  as  at  Rome,  by  the  Apostles  themselves,  at  all  events,  that  the 
church  was  there  established  before  the  end  of  the  second  century. 
It  was  trodden  down  by  the  heathen  invaders,  except  in  the  moun- 
tainous districts,  where  it  is  said  to  have  continued  without  interrup- 
tion. Not  pausing  to  examine  the  historical  evidence  of  this  state- 
ment, being  of  little  consequence  in  the  present  inquiry,  (though 
important  in  the  history  of  the  church,)  no  one  doubts  the  introduc- 
tion of  Christianity  into  Saxon  England  by  Augustin,  before  the  end 
of  the  sixth  century.  It  was  then  thoroughly  established." 

"  At  the  Norman  conquest,  (A.  D.  1066,)  it  was  found  thoroughly 
established.  William  invaded  England  with  the  sanction  of  a  papal 
grant :  and  after  he  was  seated  on  the  throne,  his  controversies  with 
Gregory  VII.,  particularly  about  homage  and  Peter  pence,  show  the 
religious  state  of  the  kingdom.  In  determined  will,  and  eminent 
abilities,  William  and  Hildebrand  were  well  matched.  But  in  his 
own  kingdom,  William  prevailed,  and  Hildebrand's  haughty  spirit 
was  obliged  to  yield.  The  same  point  is  equally  established  by  the 
controversies  between  William  Rufus  and  Anselm.  Archbishop  of 
Canterbury,  a  prelate  whose  memory  seems  entitled  to  great  respect, 
as  well  as  to  sympathy  for  the  wrongs  he  suffered,  not  only  from  his 
own  sovereign,  but  also  from  the  See  of  Rome. 

"  This  was  five  centuries  before  the  statute  of  43  Elizabeth. 
Wicklif  's  attempt  to  reform  the  church,  was  in  1356,  more  than  two 
centuries  before  the  statute. 

VOL.  I. — 13 


THE    FORUM. 

"  Sufficient,  however,  would  it  be  to  say,  that  Christianity  was 
found  fully  established  at  the  accession  of  Henry  VIII.,  almost  a  cen- 
tury before  the  statute,  which  no  one  can  by  any  possibility  question. 

"  The  revealed  law,  then,  was  a  part  of  the  common  law,  fully 
incorporated  into  it,  as  early  as  the  time  of  Alfred,  (the  ninth  cen- 
tury,) at  the  latest.  That  revealed  law,  is  a  law  of  charity.  Who 
can  deny  it  ?  If  it  had  the  virtue  to  produce  the  law  of  charity  in 
the  code  of  Imperial  Rome,  how  could  it  fail  to  do  so  in  England  ? 
Or,  how  can  it  be  that  in  the  latter  it  did  not  fill  up  its  own  proper 
measure  as  completely  as  in  the  former  ?  From  the  earliest  period, 
the  revealed  law  was  a  part  of  the  common  law  of  England,  regarded 
in  judgment.  The  note  in  Tothill,  126,  cited  by  Judge  Baldwin  in 
Magill  v.  Brown,  p.  54,  is  a  striking  instance  of  its  acknowledgment. 
'  The  law  of  God  speaks  for  him ;  equity  and  good  conscience  speak 
for  him ;  and  the  law  of  the  land  speaketh  not  against  him.'  The 
same  is  literally  true  of  every  gift  to  charity.  Does  any  one  deny 
that  charity  is  a  part  of  the  revealed  law  ?  If  he  do  not,  he  must 
admit  that  gifts  to  the  poor,  or  for  the  poor,  in  whatever  form,  arc 
at  all  times  under  the  protection  of  that  law.  If  he  do,  let  him 
open  the  sacred  books,  wherever  he  will,  and  there  he  will  find  the 
law  of  charity,  first  given  to  the  people  of  Israel,  and  then  to  the 
whole  earth. 

"  To  this  divine  light,  we  owe  the  beautiful  creation  of  a  paternal 
power  in  the  State — a  parens  patriae.  It  extends,  says  the  learned 
counsel  (Gen.  Jones,)  to  infants,  females  and  charities,  and,  it  must 
be  added,  to  idiots  and  lunatics,  and  all  the  helpless,  to  watch  over 
and  guard  them,  in  their  persons  and  property,  and  take  care  that 
their  helplessness  shall  not  be  their  destruction.  In  arranging  chari- 
ties in  this  class,  the  highest  conceivable  claim  is  conceded  to  them, 
and  the  surest  basis  of  legal  support.  For  what  would  society  be 
without  such  a  paternal  power  ?  Would  it  be  a  civilized  and  Chris- 
tian community  ?  Or  would  it  not  be  a  nation  of  savages,  with  all 


FORENSIC    ELOQUENCE.  137 

the  vices  and  cruelty  belonging  to  that  condition  ?  To  suppose  this 
parental  power  to  belong  only  to  a  crown,  and  that  it  can  be  exer- 
cised only  by  a  chancellor,  under  royal  delegation,  would  be  to  deny 
it  to  all  but  monarchical  governments,  and  derogatory,  in  the  highest 
degree,  to  our  republican  States.  But  this  is  a  mistake.  The  pa- 
rental power  is  not  an  attribute  of  any  form  of  government — it  is 
the  attribute,  the  inseparable  attribute  of  Christian  society,  the  law 
of  its  nature,  and  all  that  depends  upon  the  form  of  government,  is 
the  mode  of  administering  it.  With  us,  it  resides  in  the  State,  and 
is  exercised  by  such  instrumentality  as  may  be  deemed  most  fit  for 
the  purpose.  The  law  itself  always  exists,  and  is  of  perpetual  obli- 
gation, and  so  are  the  rights  and  duties  it  acknowledges.  If  there 
be  instances  in  which,  from  any  cause,  there  is  a  failure  of  active 
aid,  there  is  none,  there  can  be  none,  in  which  it  is  lawful  to  wrong 
the  helpless,  or  to  despoil  a  charity,  or  in  which  the  law  will  assist 
the  spoiler.  So  far,  at  least,  the  law  of  the  paternal  power  is  ever 
in  force.  For  the  present  purpose,  as  will  be  seen,  this  is  enough. 
The  charity  in  question,  is  asking  no  aid.  The  trust  is  in  course  of 
execution  by  the  trustees,  under  the  sanction  of  the  laws  of  Penn- 
sylvania. It  requires  no  aid  from  a  Court  of  Chancery,  nor  from 
any  other  court.  What  is  asked,  is  against  the  charity — that  it  shall 
be  destroyed,  that  the  fund  shall  be  taken  from  the  trust  and  from 
the  trustees,  and  given  to  individuals,  not  objects  of  the  charity,  for 
their  own  exclusive  use.  Such  an  attempt  is  contrary  to  the  revealed 
law.  It  is  contrary  to  the  common  law,  which  may  not  have  been 
provided  with  efficacious  remedial  process  to  help  a  good  work,  but 
surely  never  assisted  in  its  destruction.  It  is  contrary  to  the  first 
principles  of  civilized  society,  and  inconsistent  with  acknowledged 
truth." 


188  THE    FORUM. 

Mr,  Webster,  in  the  case  of  Girartfs  Will. — Christianity  is  the  law  of 

the  land. 

"  It  is  the  same  in  Pennsylvania  as  elsewhere,  the  general  princi- 
ples and  public  policy  are  sometimes  established  by  constitutional 
provisions,  sometimes  by  legislative  enactments,  sometimes  by  judi- 
cial decisions,  and  sometimes  by  general  consent.  But  however  they 
may  be  established,  there  is  nothing  that  we  look  for  with  more  cer- 
tainty than  this  general  principle,  that  Christianity  is  part  of  the  law 
of  the  land.  This  was  the  case  among  the  Puritans  of  New  Eng- 
land, the  Episcopalians  of  the  Southern  States,  the  Pennsylvania 
Quakers,  the  Baptists,  the  mass  of  the  followers  of  Whitfield  and 
Wesley,  and  the  Presbyterians;  all  brought  and  all  adopted  this 
great  truth,  and  all  have  sustained  it.  And  where  there  is  any  reli- 
gious sentiment  amongst  men  at  all,  this  sentiment  incorporates  itself 
with  the  law.  Every  thing  declares  it.  The  massive  cathedral  of 
the  Catholic ;  the  Episcopalian  church,  with  its  lofty  spire  pointing 
heavenward  ;  the  plain  temple  of  the  Quaker ;  the  log  church  of  the 
hardy  pioneer  of  the  wilderness;  the  mementoes  and  memorials 
around  and  about  us ;  the  consecrated  graveyards,  their  tombstones 
and  epitaphs,  their  silent  vaults,  their  mouldering  contents ;  all  attest 
it.  The  dead  prove  it  as  well  as  the  living.  The  generation  that 
are  gone  before  speak  to  it,  and  pronounce  it  from  the  tomb.  We 
feel  it.  All,  all,  proclaim  that  Christianity,  general,  tolerant  Chris- 
tianity, Christianity  independent  of  sects  and  parties,  that  Christi- 
anity to  which  the  sword  and  the  fagot  are  unknown,  general,  tole- 
rant Christianity,  is  the  law  of  the  land." 

"  I  now  take  leave  of  this  cause.  I  look  for  no  good  whatever 
from  the  establishment  of  this  school,  this  college,  this  scheme,  this 
experiment  of  an  education  in  '  practical  morality,'  unblessed  by  the 
influences  of  religion.  It  sometimes  happens  to  man  to  attain  by 
accident  that  which  he  could  not  achieve  by  long-continued  exercise 


FORENSIC    ELOQUENCE. 

of  industry  and  ability.  And  it  is  said  even  of  the  man  of  genius, 
that  by  chance  he  will  sometimes  '  snatch  a  grace  beyond  the  reach 
of  art.'  And  I  believe  that  men  sometimes  do  mischief,  not  only 
beyond  their  intent,  but  beyond  the  ordinary  scope  of  their  talents 
and  ability.  In  my  opinion,  if  Mr.  Girard  had  given  years  to  the 
study  of  a  mode  by  which  he  could  dispose  of  his  vast  fortune  so 
that  no  good  could  arise  to  the  general  cause  of  charity,  no  good  to 
the  general  cause  of  learning,  no  good  to  human  society,  and  which 
should  be  most  productive  of  protracted  struggles,  troubles,  and  dif- 
ficulties, in  the  popular  counsels  of  a  great  city,  he  could  not  so 
effectually  have  attained  that  result  as  he  has  by  this  devise  now 
before  the  court.  It  is  not  the  result  of  good  fortunes,  but  of  bad 
fortunes,  which  have  overridden  and  cast  down  whatever  of  good 
might  have  been  accomplished  by  a  different  disposition.  I  be- 
lieve that  this  plan,  this  scheme,  was  unblessed  in  all  its  purposes, 
and  in  all  its  original  plans.  Unwise  in  all  its  frame  and  theory, 
while  it  lives  it  will  lead  an  annoyed  and  troubled  life,  and  leave 
an  unblessed  memory  when  it  dies.  If  I  could  persuade  myself 
that  this  court  would  come  to  such  a  decision  as,  in  my  opinion,  the 
public  good  and  the  law  require,  and  if  I  could  believe  that  any 
humble  efforts  of  my  own  had  contributed  in  the  least  to  lead  to 
such  a  result,  I  should  deem  it  the  crowning  mercy  of  my  profes- 
sional life." 

These  specimens  of  the  style  of  American  lawyers, 
will  compare,  for  strength,  purity,  and  eloquence,  with 
any  production  of  former  or  present  times ;  and  there 
is  certainly  nothing  in  English  oratory,  that  exhibits 
more  argumentative  power,  or  a  richer  vein  of  legal 
and  historical  knowledge. 

There  is  one  other  speech,  delivered  by  Joseph  R. 


19Q  THE    FORUM. 

Ingersoll,  in  the  celebrated  case  of  Richard  Smith,  in- 
dicted for  the  murder  of  Captain  John  Carson,  which 
we  may  be  privileged  to  introduce.  Mr.  Ingersoll  was, 
at  the  date  of  this  effort,  under  thirty  years  of  age — 
the  youngest  of  all  the  counsel  concerned.  The  case 
did  not  admit  of  the  display  of  great  legal  attainments, 
but  there  have  been  but  few  speeches  pronounced  in 
this  country,  more  remarkable  for  deep  pathos  and 
classical  beauty.  To  say,  that  it  was  equal  to  any 
argument  in  the  cause,  is  sufficient  commendation, 
when  it  is  known  that  such  men  as  William  Rawle 
and  Jared  Ingersoll,  were  concerned.  Space,  however, 
is  not  allowed  for  more  than  the  exordium;  in  pre- 
senting which,  we  feel  justified  in  observing,  that  the 
grace  and  propriety  of  its  delivery  were  equal  to  the 
copiousness  and  felicity  of  its  diction.* 

"  To  you,  who  have  been  state  prisoners  for  the  last  five  days,  it 
must  be  a  subject  of  little  satisfaction  that  so  many  counsel  are  per- 
mitted to  address  you.  Yet  the  humane  policy  of  our  laws,  ever 
watchful  of  the  treasure  of  life,  has  surrounded  it  with  all  the  sanc- 
tions that  human  wisdom  can  devise.  A  stranger,  who  has  recently 
arrived  from  the  continent  of  Europe,  where  he  has  been  accustomed 
to  witness  the  comparative  disregard  of  life,  which  is  exhibited  by 
the  tribunals  of  older  countries,  and  has  now  been  an  attentive  spec- 
tator of  this  scene,  has  expressed  his  astonishment  and  delight  at  the 
opportunities  here  afforded  for  exculpation  of  innocence,  and  the 

*  Trial  of  Richard  Smith,  as  principal,  and  Ann  Carson,  as  accessory, 
20th  of  January,  1816.— page  145. 


FORENSIC    ELOQUENCE. 

complete  and  satisfactory  demonstrations  of  guilt,  that  must  necessa- 
rily precede  conviction.  To  him  it  was  equally  novel  and  wonderful, 
that  while  a  public  officer,  divested  of  the  feelings  of  animosity  which 
might  be  expected  to  influence  the  friends  of  the  deceased,  alone  con- 
ducted the  prosecution,  the  advocates  of  the  accused,  without  restric- 
tion of  number  or  limitation  in  topics  of  discussion,  might  freely  range 
over  the  most  extensive  fields  of  argument,  and  gather  from  every 
quarter,  illustrations  and  inducements,  in  favor  of  him  who  is  still 
presumed  to  be  innocent.  The  momentary  inconvenience  which  you 
sustain  in  a  painful  separation  from  your  business  and  families  during 
a  long  protracted  trial,  will  readily  be  reconciled  to  minds  of  a  pro- 
per tone,  by  the  reflection  that  it  may  save  a  fellow  creature.  If  each 
succeeding  person  who  addresses  you,  can  present  a  single  new  idea, 
contributing,  however  partially,  to  this  important  end,  or  even  can 
so  illustrate  a  thought  already  suggested,  as  to  give  it  additional 
force  and  impressiveness,  the  laborious  attention  will  be  well  be- 
stowed. 

"  The  prisoner  is  now  alone  upon  his  trial.  But  in  the  indictment 
which  has  been  found,  he  is  associated  with  another,  who  was  exposed 
to  the  same  arraignment,  and  has  equally  appealed  for  protection  to 
the  mercy  of  her  God,  and  the  justice  of  the  country.  An  union  of 
hearts  and  hands,  under  solemnities  founded  in  the  purest  principles 
of  religion  and  morality,  and  recognised  and  respected  by  the  muni- 
cipal law,  has  received  an  awful  confirmation  by  exposure  to  a  com- 
mon danger,  and  inculpation  in  a  common  crime.  That  person 
awaits  in  anxious,  but  respectful  solicitude,  the  moment  when  she  too 
will  be  exposed  to  the  scrutiny  of  a  trial ;  for  she  will  hail  that  mo- 
ment as  the  harbinger  of  her  enlargement  from  a  disgraceful  impri- 
sonment, and  her  restoration  to  the  society  of  those  children,  whom 
she  never  has  abandoned — whom  she  never  has  ceased  to  watch  over 
with  the  tenderest  affection — to  whom  she  has  performed  the  duties 
more  peculiarly  incumbent  on  her  sex,  as  well  as  those  which  would 


192  THE    FORUM. 

have  become  a  father's  care.  She  is  not  now  upon  her  trial.  Her 
defence,  therefore,  is  no  further  a  subject  of  animadversion,  than  as 
it  has  been  connected  with  that  of  the  prisoner  at  the  bar,  either  by 
the  inherent  nature  of  the  case,  arising  from  evidence  of  joint  parti- 
cipation in  collateral  transactions,  or  by  the  course  pursued  by  the 
prosecuting  officers  of  the  commonwealth.  The  former  authorises 
inferences  of  innocence,  in  favor  of  one  of  the  parties,  from  acknow- 
ledged or  established  proof  with  regard  to  the  other — the  latter, 
designating  the  necessity  of  that  connection,  affords  the  additional 
and  authoritative  sanction  to  these  inferences  of  official  opinion  and 
assent.  The  charge  is,  in  effect,  that  of  a  combination  to  commit 
murder.  Disproving  the  combination,  we  go  far  to  disprove  the 
whole  crime.  I  shall  not  be  considered  as  deviating  from  the  strictest 
line  of  argument,  by  which  I  am  willing  to  be  bound,  when  I  dwell 
minutely  upon  the  conduct,  as  it  has  been  displayed  in  the  evidence, 
of  the  unhappy  female,  who  has  been  the  unfortunate,  but  innocent 
subject,  of  all  these  melancholy  controversies." 

"  Besides,  the  history  of  the  case  is  little  more  than  the  history  of 
its  most  conspicuous  character;  and  exculpating  her,  will  largely 
contribute  to  place  the  blame  where  it  ought  to  rest,  and  to  vindicate 
him,  who  has  been  wrongfully  accused.  Certainly  the  circumstances 
now  under  discussion,  are  of  an  unprecedented  character.  The  annals 
of  criminal  jurisprudence  furnish  no  parallel.  A  husband,  after 
having  for  years  abandoned  the  children  to  whom  he  had  given 
existence,  and  whom  he  was  bound  to  protect,  in  the  bosom  of  what 
might  have  continued  to  be  his  family,  has  fallen  the  victim  of  his 
own  folly,  or  crimes.  A  wife  is  arraigned  for  butchering  in  cold 
blood,  the  parent  of  her  children  and  the  former  partner  of  her  bed, 
once  endeared  to  her  by  the  strongest  ties  that  can  sanctify  human 
nature ;  and  the  legitimate  sanction  of  a  new  tie,  is  threatened  with 
dissolution  by  the  union  of  the  second  husband  in  the  crime.  To 
complete  the  whole — the  parents  of  that  wife,  are  summoned  to  im- 


FORENSIC    ELOQUENCE. 

precate  the  vengeance  of  the  law,  and  to  consign  to  an  ignominious 
death,  both  their  child  and  the  husband  of  her  choice.  All  the 
charities  and  all  the  sympathies  of  our  nature,  are  torn  asunder.  It 
should  seem  as  if  the  arch  fiend  of  hell  had  woven  his  blackest  web, 
to  display  in  one  dismal  perspective,  the  most  complicated  group  of 
human  wretchedness." 

"  The  Egyptians,  we  are  told,  in  no  barbarous  age,  by  way  of 
example  to  the  living,  subjected  the  bodies  of  their  departed  citizens 
to  the  ceremony  of  a  trial ;  and  exposed  them  to  punishment,  which 
was  thus  divested  of  its  cruelty,  and  excited  scarcely  less  emotion 
among  the  spectators,  than  if  it  had  been  accompanied  by  suffering 
to  the  accused.  Among  modern  nations,  and  in  a  more  enlightened 
age,  the  dead  are  respected,  chiefly  from  regard  to  the  living ;  but 
when  the  safety  or  advantage  of  the  living  is  to  be  promoted,  or 
secured  by  a  free  inquiry  into  the  conduct  of  the  dead,  why  should 
it  not  be  made  ?  History,  which  has  been  termed  philosophy,  teach- 
ing by  examples,  is  little  else  than  a  long  catalogue  of  the  crimes  of 
those  who  have  gone  to  their  account.  A  never  ending  perseverance 
in  error,  would  be  the  consequence  of  an  omission  to  detail  them. 
And  posterity,  which  execrates  the  memory  of  a  Jefferies,  no  less 
applauds  the  historian  for  transmitting  it  to  their  hate,  than  for 
recording  in  the  same  enlightened  page,  the  virtues  of  many  of  his 
cotemporaries.  Shall  the  shade  of  Carson  be  invoked  to  excite  un- 
warrantable feelings  of  indignation  against  a  prisoner,  who  can  no 
longer  defend  himself — to  stimulate  the  curses  that  follow  him  to 
his  cell,  and  pursue  him  in  his  melancholy  journeys  back  again  to  the 
bar — to  prompt  the  unmanly  blow — and  yet  shall  it  not  be  used  to 
allay  the  sensation  it  has  thus  excited  ?  Shall  none  of  the  transac- 
tions of  his  life  be  exhibited,  except  the  doubtful  penitence  of  his 
dying  hour  ?  Shall  we  be  blinded  to  all  the  errors  of  his  devious 
pilgrimage,  by  an  imaginary  apotheosis,  arising  only  from  the  melan- 
choly character  of  his  death  ?  No  !  no !  The  body  must  be  dis- 


194  THE    FORUM. 

sected,  to  ascertain  the  disease  of  which  it  died — the  character  must 
be  scrutinized,  to  discover  how  far  these  violent  prepossessions  are 
just." 


We  must,  of  course,  in  comparing  ancient  and  mo- 
dern eloquence,  make  allowances  for  the  inadequacy 
of  translations,  to  do  entire  justice  to  what  are  called 
the  dead  languages ;  and  we  must  also  allow  for  the 
difference  in  government  and  in  men,  in  order  to 
do  justice  to  the  orators  of  antiquity,  and  to  under- 
stand their  control  over  the  popular  mind.  JEschines, 
in  reciting  to  his  class  the  great  oration  of  Demosthe- 
nes for  the  Crown,  perceiving  them  lost  in  admiration, 
exclaimed,  "But  what  would  have  been  your  asto- 
nishment, if  you  had  heard  it  delivered  by  himself?" 
hence,  we  may  readily  imagine  that  the  effect  of  elocu- 
tion depended  principally  upon  the  manner  of  the 
orator.  Looking  to  the  sentiments  and  arguments 
alone,  we  cannot  perceive  any  thing  in  this  speech, 
excepting  its  abuse,  that  outstrips  modern  competition. 
Undoubtedly,  the  action  of  a  speaker  then  was,  and 
still  is,  the  soul  of  a  speech.  There  is  no  oratorical 
effort  that  ever  captivated  the  world,  that  cannot,  by 
an  imperfect  delivery,  be  rendered  utterly  contempti- 
ble— not  in  itself,  but  in  its  influence  upon  others. 
Some  speeches  have  no  action  in  themselves,  and  may 
be  called  mere  essays;  action  imparted  to  them  by  the 
speaker,  will  not  improve  them,  but  render  them  worse. 


FORENSIC    ELOQUENCE. 

Others,  again,  have  great  inherent  energy  and  action, 
and  require  commensurate  zeal  and  animation  in  order 
to  their  effective  delivery. 

•If  any  confirmation  of  the  truth  of  this  doctrine  be 
required,  cast  your  eyes  upon  the  drama.  Wherein 
consists  the  vast  difference  between  Cooke,  and  Kean, 
and  Kemble,  and  Booth,  and  Forrest — and  the  vilest 
drivellers  that  ever  converted  a  tragedy  into  a  farce  ? 
The  latter  are  perfectly  familiar  with  their  parts ;  that 
is,  they  have  committed  the  words  of  their  author  with 
great  exactness,  but  they  have  forgotten,  if  they  ever 
knew,  "  that  the  word  killeth — it  is  the  SPIRIT  which 
maketh  alive."  They  are  actually  crushed  by  the 
weight  of  their  own  armor,  and  like  Cardinal  Beaufort, 
they  "  die,  and  make  no  sign."  There  is  this  consola- 
tion, however,  that  their  death,  is  the  life  of  the  audi- 
ence. 

Oratory,  then,  according  to  my  humble  views,  springs 
rather  from  the  heart  than  the  head ;  though  its  best 
efforts  are  usually  the  result  of  joint  influence. 

Moral  courage,  decision  of  character,  and  energetic 
mental  and  physical  action,  all  belong  to  the  same  cate- 
gory, and  contribute  to  constitute  the  thorough  advocate. 
They  are  indispensable ;  and  it  is  somewhat  surprising, 
that  in  these  qualities  both  Demosthenes  and  Cicero  were 
occasionally  deficient.  Those  who,  among  the  ancients, 
manifested  the  most  of  them,  were  Julius  Caesar  and 
the  Apostle  Paul.  The  casting  away  his  shield,  dedi- 


196  THE 

cated  to  good  fortune,  and  his  terror  in  his  first  speech 
before  Philip  of  Macedon,  reflect  but  little  credit  upon 
the  courage  of  Demosthenes,  and  bring  his  bravadoes 
into  doubt.  There  is  no  such  enemy  to  memory  or 
oratory  as  unreasonable  fear;  a  man  of  a  feeble  temper, 
never  can  succeed. 

Cicero  was  also  thrown  into  such  consternation  in  his 
oration  for  Milo,  upon  beholding  the  soldiery  in  the  senate 
chamber,  that  although  he  promised  the  most,  he  per- 
formed the  least.  Of  that  occasion,  he  thus  speaks  : — 

"  Those  guards  you  see  planted  before  all  the  temples,  however 
intended  to  prevent  violence,  yet  strike  the  orator  with  terror ;  so 
that,  even  in  the  FORUM,  and  during  a  trial,  though  attended  with  a 
useful  and  necessary  guard,  I  cannot  help  being  under  some  appre- 
hensions, at  the  same  time  that  I  am  sensible  they  are  without  foun- 
dation. Indeed,  if  I  imagined  they  were  stationed  there  in  opposition 
to  Milo,  I  should  give  way,  my  lords,  to  the  times,  and  conclude 
there  was  no  room  for  an  orator  in  the  midst  of  such  an  armed  force. 
But  the  prudence  of  Pompey,  a  man  of  such  distinguished  wisdom 
and  equity,  both  cheers  and  relieves  me,  whose  devotion  will  never 
suffer  him  to  leave  a  person,  whom  he  has  delivered  up  to  a  legal 
trial,  exposed  to  the  rage  of  the  soldiery ;  nor  his  wisdom,  to  give 
the  sanction  of  public  authority  to  the  outrages  of  a  furious  mob."* 

It  will  also  be  remembered,  that  he  composed  four 

• 

*  Cicero  for  Milo — delivered  by  Cicero,  at  the  age  of  fifty -five — re- 
touched and  presented  to  Milo,  while  exiled,  at  Marseilles.  It  was  of  this 
speech,  that  Milo  is  reported  to  have  said,  that  if  it  had  been  delivered  as 
written,  he  should  not  have  been  condemned  to  banishment 


FORENSIC    ELOQUENCE.  1Q7 

speeches,  which  are  called  his  Philippics  against  Mark 
Antony ;  three  of  which  he  never  ventured  to  deliver. 
While  the  speech  that  he  did  pronounce,  was  in  the 
absence  of  Antony,  and  manifests  the  utmost  timidity. 
His  greatest — perhaps  his  only  defect — was  want  of 
moral  courage.  Had  he  possessed  the  firmness  and  for- 
titude of  Cato  or  Csesar,  he  would  have  been  the  man 
of  Rome,  in  Rome's  most  palmy  state.  Even  his  death 
was  marked  by  what  must,  at  that  time,  have  been 
considered  great  pusillanimity. 

This,  also,  coming  down  to  modern  times,  was  Lord 
Mansfield's  defect.  He  was  repeatedly  struck  dumb, 
by  the  attacks  of  Lord  Chatham.  Although  clearly  the 
most  accomplished  debater  of  his  time,  yet  was  he 
unable  to  encounter  or  resist  the  torrent  of  Chatham's 
declamation  and  invective.  Nay,  further,  it  is  said, 
that  when  Chatham  turning  to  him,  said,  "  I  must  now 
address  a  few  words  to  Mr.  Attorney — they  shall  be 
few,  but  they  shall  be  daggers ;" — that  Mansfield  actu- 
ally quailed,  and  shrunk  under  the  attack.  When, 
fixing  his  eye  upon  him,  as  if  in  commiseration,  Chat- 
ham exclaimed,  "Judge  Festus  trembles! — he  shall 
hear  from  me  some  other  day."  He  also  betrayed  the 
same  want  of  self-possession  in  the  great  libel  ques- 
tion, in  which  he  was  opposed  to  Lord  Camden,  who, 
though  his  inferior,  obtained  over  him  a  decided  tri- 
umph. 

But  there  is  a  still  more  serious  objection  to  him,  if, 


198  THE    FORUM. 

indeed,  it  be  not  a  different  phase  of  the  same  objec- 
tion— a  want  of  heart.  Here  it  was,  we  suppose,  that 
Chatham  had,  and  felt  his  advantage.  Mansfield  was 
evidently  his  superior  in  learning,  and  in  grasp  of 
mind ;  but  he  had  not  the  spirit,  the  high  and  indomi- 
table will  of  his  adversary.  A  cold  and  selfish  man 
cannot  warm  others,  or  excite  sympathies  which  his 
own  heart  is  incapable  of  feeling ;  the  world  is  even 
with  him — he  shows  no  kindness,  and  receives  none. 

Lord  Erskine,  too — the  brightest  of  English  advo- 
cates— and  at  times  displaying  most  exemplary  and 
undaunted  resolution  and  bravery — lost,  or  surren- 
dered rather,  an  opportunity  of  a  triumph,  from  a  want 
of  moral  courage,  when  he  declined  taking  the  defence 
of  Warren  Hastings :  no  doubt — or  such  at  least  is  the 
general  belief — from  a  fear  of  encountering  Pitt,  Fox, 
and  Burke.  When,  had  he  met  them,  one  or  all,  it 
would  have  been  upon  his  own  peculiar  forensic  field, 
and  he  would  have  more  than  regained  his  lost  honors 
in  the  House  of  Commons,  by  his  transcendent  abili- 
ties as  an  advocate.  At  a  dinner  given  by  Mr.  Dun- 
das,  Erskine  having  been  rallied  upon  the  subject  of 
not  maintaining  his  high  reputation  for  eloquence,  when 
translated  to  the  House  of  Commons,  Sheridan,  who 
was  present,  said,  "  I'll  tell  you  how  it  happens,  Ers- 
kine, you  are  afraid  of  Pitt,  and  that  is  the  flabby  part 
of  your  character." 

Ellenborough,  Dallas,  and  Plummer,  all  unequal  to 


FORENSIC    ELOQUENCE.  199 

him,  took  the  defence  of  Hastings,  successfully  main- 
tained their  ground  against  their  powerful  adversaries, 
and  secured  to  themselves  imperishable  renown.  And 
yet,  Erskine,  on  all  occasions  at  the  bar,  and  especially 
in  the  case  of  The  King  against  the  Dean  of  St.  Asaph, 
showed  a  determination  and  courage  that  will  never  be 
forgotten.* 

*A  CASE  OF  LIBEL. — Justice  Buller  told  the  jury,  "  that  there  was  no 
doubt  as  to  the  innuendoes,  and  that  the  simple  question  was,  whether 
or  not  the  defendant  published  the  pamphlet?"  If  he  did,  you  ought  to 
convict  him. 

The  jury  returned  a  verdict,  "  Guilty  of  publishing,  only."  Buller 
then  said,  "  If  you  find  him  guilty  of  publishing,  you  must  not  use  the 
word  only.1'1 

Erskine. — "I  beg  your  Lordship's  pardon — I  mean  nothing  that  is 
irregular.  I  understand  they  say,  '  We  only  find  him  guilty  of  pub- 
lishing.' " 

Juror. — "  Certainly ;  that  is  all  we  do  find." 

Butter. — "  If  you  only  attend  to  what  is  said,  there  is  no  difficulty  or 
doubt." 

Erskine. — "  Gentlemen,  I  desire  to  know  whether  you  mean  the  word 
only  to  stand  in  your  verdict  ?" 

Jury.—"  Certainly." 

Buller. — "  Gentlemen,  if  you  add  the  word  only,  it  will  negative  the 
innuendoes." 

Erskine. — "I  desire  your  Lordship,  sitting  here  as  Judge,  to  record 
the  verdict  as  given  by  the  jury." 

•  Buller. — "  You  say  he  is  guilty  of  publishing,  and  the  meaning  of  the 
innuendoes  is  as  stated  in  the  indictment." 

Juror. — "  Certainly." 

Erskine. — "  Is  the  word  only,  to  stand  as  part  of  the  verdict  ?" 

Jury.—"  Certainly." 

Erskine. — "  Then  I  insist  it  shall  be  recorded." 


200  THE    FORUM 

Pinckney,  too,  to  whom,  in  speaking  of  Erskine,  the 
mind  naturally  turns,  "as  quales  et  quantos  viros" — 
equals,  on  the  opposite  sides  of  the  Atlantic,  in  profes- 
sional glory;  lost  caste  in  refusing  to  defend  Justice 
Chase,  .upon  his  impeachment  in  the  United  States 
Senate,  (although  gratitude  should  have  impelled  him 
to  that  service,)  and  left  to  Luther  Martin,  Harper, 
Hopkinson,  and  others,  those  laurels  that  he  might 
have  won,  and  worn,  himself.  There  are  many  other 
instances  of  this  infirmity  that  history  supplies,  which 
our  readers  would  reluctate  in  contemplating. 

Every  man,  however,  has  his  weak  hour,  or  we 
should  all  be  angels.  Napoleon  lost  Waterloo,  and 
forgot  to  die  on  the  field  of  battle ;  wrhich,  speaking  in 
the  language  of  worldly  ambition,  wrould  have  crowned 
his  fame  forever.  Nothing  in  his  life,  would  have  be- 
come him  like  such  a  death ;  but  as  no  man  is  wise  at 
all  tunes,  so  no  man  is  brave  at  all  times.  Sudden 


Buller. — "  Then  the  verdict  must  be  misunderstood — let  me  understand 
the  jury." 

Erskine. — "  The  jury  do  understand  the  verdict." 

Buller. — "  Sir,  I  will  not  be  interrupted." 

Erskine. — "  I  stand  here  as  an  advocate  for  a  brother  citizen,  and  I 
desire  the  word  only  may  be  recorded." 

Buller. — "  Sit  down,  Sir — remember  your  duty,  or  I  shall  be  obliged  to 
proceed  in  another  manner." 

Erskine. — "  Your  Lordship  may  proceed  in  what  manner  you  think  fit : 
I  know  my  duty  as  well  as  your  Lordship  knows  yours ;  I  shall  not  alter 
mv  conduct." 


FORENSIC    ELOQUENCE.  201 

and  unexpected  exigencies  destroy  the  equilibrium  of 
the  mind,  and  leave  our  actions  rather  to  the  control 
of  chance,  than  reason. 

"  The  heart  of  a  statesman,"  says  Napoleon,  "  must 
be  in  his  head;"  and  we  may  be  permitted  to  add, 
"  the  head  of  an  advocate  must  be  in  his  heart."  A 
phrenologist  of  some  distinction  informs  us,  that  in  a 
blindfold  examination,  he  happened  to  ascribe  superior 
talents  to  a  man,  who  was  actually  deficient  in  intel- 
lect. When  the  error  was  discovered,  and  a  re-exami- 
nation took  place,  he  observed,  that  the  head  was  a 
good  one,  and  all  that  it  had  been  described  to  be,  but 
that  the  chest  was  small  and  narrow,  and  the  heart  was" 
too  feeble  to  nourish,  invigorate,  and  stimulate  the  brain. 

The  head,  without  the  heart — if  the  comparison 
may  be  excused — is  like  a  steam  engine  without  a 
boiler.  Without  the  aid  of  the  heart,  reason  is  cold, 
vapid,  and  comparatively  worthless.  The  heart  is  the 
throne  of  the  passions ; — 'tis  there  we  rule,  are  ruled, 
and  must  be  won.  The  passions  constitute  the  impulse 
and  motive  to  intellectual  action,  and  often  spontane- 
ously regulate  human  deportment,  without  regard  to 
the  restraints  of  reason,  or  the  decree  of  judgment. 
It  is  only,  however,  where  the  emotions  or  influences 
of  the  head  and  heart  are  judiciously  adapted  to 
each  other,  that  the  harmonious  and  perfect  orator  is 
formed.  Great  mental  accomplishments  are  therefore 
more  necessary  to  those  possessed  of  great  depth  and 

VOL.  i. — 14 


202  THE  FORUM. 

energy  of  feeling; — they  are  reason's  girdle  and  pas- 
sion's bridle.  Where  there  is  extensive  power,  there 
must  be  co-extensive  control  and  direction.  Misap- 
plied energies  eventuate  in  the  worst  consequences, 
and  it  is  frequently  to  be  regretted,  that  extraordinary 
intellectual  strength,  swelled  into  irregular  and  eccen- 
tric action  by  the  impulses  of  the  heart,  like  the 
mighty  Nile,  at  tunes  defies  restraint,  and  sheds  terror 
and  dismay  over  those  smiling  regions,  which  it  was 
designed  to  fertilize  and  to  bless. 

As  feudal  nobility  disappears  before  that  great  level- 
ing principle  which  has  equalized  America,  and  is 
rapidly  overrunning  the  whole  world — a  modern,  more 
natural,  more  legitimate,  and  less  questionable  peerage 
will  arise,  the  peerage  of  talents — in  which  orators 
will  be  princes.  Universal  respect  and  unbounded 
influence,  will  be  their  assured  reward ;  they  will  be 
revered  by  the  populace,  supported  and  encouraged  by 
the  opulent;  their  alliance  sought  by  every  family; 
their  company  courted  by  every  society ;  their  authority 
recognized  and  their  aid  required  by  every  government. 
This  is  no  illusory  or  far-fetched  fancy.  It  may  have 
once  been  a  paradox,  but  the  times  have  given  it  proof. 
Henry,  and  Ames,  and  Wirt,  and  Pinckney,  with  a 
host  of  other  examples,  all  abundantly  establish  and 
inculcate  its  reality.  It  is  therefore,  we  say,  to  this 
divine  art,  our  youth — our  educated  youth — should 
assiduously  apply  themselves.  It  matters  not  how 


FORENSIC    ELOQUENCE.  203 

their  lot  may  be  cast ;  it  matters  not  what  may  he 
their  calling :  the  lawyer,  the  clergyman,  the  professor 
of  any  science,  the  statesman — nay,  we  may  say,  the 
merchant,  the  tradesman,  the  farmer,  and  the  mechanic, 
will  all  derive  advantage,  amazing,  incalculable  advan- 
tage, from  the  improved  power  of  speech.  It  is  the 
best  basis,  the  most  powerful  lever,  the  chief  element 
of  elevation;  and  its  prevalence  extends  "far  as  the 
adventurous  voyager  spreads  his  sail."  Persuasion, 
now,  is  the  only  government,  as  it  has  always  been  the 
best  government.  Coercion  is  a  tale  of  other  times ; 
public  and  private  dominion  have  no  longer  any  founda- 
tion in  fear.  Whether  moral  or  forcible  authority  is 
to  be  preferred,  would  be  an  idle  inquiry.  For,  as  has 
been  said,  the  age  of  constraint,  like  that  of  chivalry, 
has  passed  away — and,  assuming  its  true  position,  the 
mind  now  looks  down  upon  that  power,  which  it  was 
too  long  taught  to  look  up  to.  Artificial  aggrandizement 
has  given  place  to  what  may  be  termed  natural  ascen- 
dency, or  the  true  nobility  of  nature.  "  Viarn  inveniam 
aut  faciam,"  is  the  doctrine  of  the  present  day ;  and  it 
has  ever  been  the  doctrine  of  daring  and  aspiring  minds. 

"  What  to  him, 

That  wears  great  nature's  patent  in  his  breast, 
Are  all  the  tinsel  trappings  of  a  court  ? 

Were  he  ten  times  a  lord, 
Could  his  redoubled  titles  more  than  vouch 
His  innate  worth  ?     The  consciousness  of  virtue 


204  THE  FORUM. 

Shrinks  from  external  proof,  and  rests  alone, 
And  rests  secure  upon  approving  Heaven, 
Without  whose  smile  a  diadem  is  dross, 
And  priceless  jewels  glitter  to  betray. 
Forty  thousand  lords,  fair  weather  lords, 
In  their  united  worth,  are  not  the  tithe 
Of  Nature's  nobleman." 

He  takes  his  post — not  by  fortune,  not  by  chance — 
by  the  side  of  those  who  claim  theirs  by  the  privilege 
of  birth.  He  holds  it  not  by  the  frail  tenure  of  inhe- 
ritance, but  in  his  own  direct,  absolute,  and  unques- 
tionable right.  No  man  dares  dispute  it- — it  is  not 
borrowed  or  reflected  glory;  the  power  that  acquired 
it,  is  sufficient  to  maintain  and  secure  it ;  he  builds  not 
upon  the  fame  of  his  ancestors ;  he  mounts  not  upon 
the  stilts  and  crutches  supplied  by  his  friends ;  he 
stands — as  the  Creator  designed  he  should — upon  his 
own  feet,  self-dependent  and  self-sufficient ;  and  he  looks 
down — down  upon  those  who,  in  their  imaginary  and 
supercilious  elevation,  have  been  taught  to  look  down 
upon  him.  The  poor  and  friendless  boy  is  forgotten, 
in  the  self-formed  and  complete  man.  He  looks  about 
him,  and  despises  the  tinsel  and  trappings  of  the  fools 
of  fortune.  He  subdued  adversity  without  them,  and 
in  his  prosperity  they  are  unnecessary.  He  despised 
them  when  before  him — they  are  doubly  contemptible 
when  behind  him. 

With  us,  there  are  no  stars,  or  garters,  or  orders 
of  nobility.     There  is  no  royal  favour  to  court,  or  to 


FORENSIC    ELOQUENCE.  205 

profit  by ;  but  every  freeman  is  a  chartered  king :  and 
an  improved  intellect  shall  shed  a  brighter  lustre  around 
his  brow,  than  the  richest  jewel  in  a  monarch's  crown; 
because,  under  heaven,  it  is  emphatically  his  own.  No 
human  power  can  give  it  to  him  without  his  will — 
without  his  will,  no  human  power  can  deprive  him  of 
it.  How  emphatically  does  this  part  of  our  subject 
address  itself  to  the  young?  and  perhaps  we  cannot 
do  better  than  pause  upon  it  a  little  longer,  and  place 
it  before  you  in  some  of  its  varieties,  even  at  the 
expense  of  the  order  originally  proposed. 

Fortune  is  too  transitory,  too  fugitive,  to  attract  any 
permanent  regard.  It  is  like  the  lightning,  "that  doth 
cease  to  be,  ere  one  can  say,  it  lightens."  And  although 
thousands  submit  to  its  dominion,  it  can  impart  no 
rational  gratification  to  its  possessor,  except  when  ap- 
plied to  the  promotion  of  virtue.  The  case  is  widely 
different,  however,  with  a  man  of  moral  and  intellec- 
tual wealth.  Behold  him  in  the  literary,  professional, 
or  social  circle — he  is  the  very  centre  of  interest  and 
attraction — mark  him  in  the  councils  of  the  nation, 

"  Deep  on  his  front  engraven, 
Deliberation  sits,  and  public  care." 

But  to  return  from  this  digression.  Although  it  is 
not  within  the  professed  scope  of  the  present  work, 
to  go  beyond  the  forum,  yet,  as  eloquence  "  is  the 


206  THE    FORUM. 

subject  of  our  story,"  we  cannot,  in  its  consideration, 
lose  sight  of  one  to  whom  we  have  incidentally  re- 
ferred, and  who,  according  to  Longinus,  was  "  among 
the  first  of  orators" — we  mean  the  APOSTLE  PAUL.  He 
was  commanded  to  "  be  not  afraid,  but  to  speak,  and 
hold  not  his  peace ;"  and  he  did  speak  boldly,  in  the 
name  of  the  Saviour.  See  him  standing  before  Felix, 
reasoning  "  of  righteousness,  temperance,  and  judgment 
to  come."  Is  it  to  be  wondered  at,  that  the  Roman 
governor  trembled  ?  Behold  him,  on  Mars'  hill,  before 
the  mighty  areopagus,  exclaiming : — 

"  Ye  men  of  Athens !  I  perceive  that  in  all  things  ye  are  too 
superstitious,  for  as  I  passed  by  and  beheld  your  devotions,  I  found 
an  altar  with  this  inscription,  '  To  the  unknown  God,' — whom  there- 
fore ye  ignorantly  worship,  him  declare  I  unto  you." 

Then,  again,  in  the  synagogue  at  Corinth,  when 
opposed  and  assailed  by  the  blasphemous  Jews,  he 
shook  his  raiment,  and  said  unto  them:  "Your  blood 
be  upon  your  own  heads — I  am  clean." 

This  is  the  true  model  for  a  minister  of  the  Gospel ; 
this  is  genuine  eloquence ;  this  is  what  Demosthenes 
denominated  action.  Instead  of  Felix  trembling  at 
the  present  day  before  Paul,  every  Paul  trembles  be- 
fore every  Felix — man  before  man,  and  in  the  presence 
of  his  God.  The  charge  against  him  was,  that  he  per- 
suaded men  to  worship  God  contrary  to  the  law ;  the 
charge  that  might  be  truly  preferred  against  some  ol 


FORENSIC    ELOQUENCE.  207 

the  preachers  of  the  present  day,  would  be,  that  they 
cannot  persuade  men  to  worship  God,  even  with  all 
the  aid  and  influence  of  the  law.  So  eloquent  was 
this  great  Apostle,  that  we  believe  there  is  but  one 
recorded  instance,  of  his  having  upon  any  occasion,  put 
a  single  hearer  to  sleep,  though  he  awakened  many  to 
the  joys  of  eternal  life.  That  was  the  instance  of 
Eutichus,  who,  during  his  slumber,  fell  from  the  third 
loft  and  was  taken  up  dead,  and  was  afterwards  miracu- 
lously restored  to  life  by  the  Apostle.  Alas !  how 
many  among  us,  are  permitted  to  doze  through  a 
drowsy  discourse,  "  having,"  in  the  language  of  Dean 
Swift,  "selected  more  secure  places  for  their  repose, 
and  choosing  rather  to  trust  their  death  to  a  miracle, 
than  their  revival." 

Paul  fully  understood  the  value  of  speech ;  he  was 
an  orator  in  the  best  sense  of  the  term.  When  assailed 
by  the  incensed  populace  at  Jerusalem,  and  bound  in 
chains,  he  exclaimed  to  the  chief  captain :  "  I  beseech 
thee,  suffer  me  to  speak  unto  the  people ;"  and  a  noble 
speech  he  made.  And  again,  when  Ananias  commanded 
them  to  smite  him  on  the  mouth,  Paul  said  unto 
him,  "  God  shall  smite  thee,  thou  whited  wall ;  for  sit- 
test  thou  to  judge  me  after  the  law,  and  commandest 
me  to  be  smitten,  contrary  to  the  law  ?"  How  utterly 
does  he  demolish  the  fawning  orator,  Tertullus,  before 
Felix !  and  how  simple,  yet  how  beautiful  a  defence 
he  makes  before  Agrippa !  Nothing  can  surpass  the 


208  THE  FORUM. 

concluding  appeal,  in  answer  to  the  imputation  of  mad- 
ness, cast  upon  him  by  Festus  :  "  I  am  not  mad,  most 
noble  Festus,  but  speak  forth  the  words  of  truth  and 
soberness ;  for  the  king  knoweth  of  these  things. 
King  Agrippa,  believest  thou  the  prophets  ?  I  know 
that  thou  believest."  Agrippa  said  unto  Paul :  "Almost 
thou  persuadest  me  to  be  a  Christian."  "  I  would  to 
God,"  replied  the  Apostle,  "  that  not  only  thou,  but 
also  all  that  hear  me  this  day,  were  both  almost  and 
altogether  such  as  I  am,  EXCEPT  THESE  BONDS." 

Paul's  intellect  was  of  the  highest  and  noblest  order ; 
he  had  as  much  force  as  Demosthenes ;  as  much  grace 
as  Cicero ;  and  much  more  artlessness  and  moral  cou- 
rage than  either.  Inferior  to  them,  as  he  no  doubt 
was,  in  worldly  learning,  and  avoiding  display  as  in- 
compatible with  the  cause  of  his  Divine  Master,  it  is 
still  much  easier  to  conceive  of  their  rare  and  combined 
perfections,  than  to  elevate  the  mind  to  his.  So  much 
thought,  so  much  simplicity,  so  much  zeal,  so  much 
humility,  so  much  reliance  upon  heaven,  so  little  upon 
himself!  How  widely  and  how  favourably  distin- 
guished in  all  those  characteristics  from  the  vain-glori- 
ous Roman,  and  the  arrogant  and  ferocious  Greek ! 
They  mounted  to  the  temple  of  fame,  on  the  necks  of 
an  admiring  populace.  He  scaled  the  glorious  Empy- 
rean from  beneath  the  foot  of  the  oppressor !  They 
grew  great  amidst  the  acclamations  of  tributary  thou- 
sands. He  carved  his  way  to  immortality,  through 


FORENSIC    ELOQUENCE.  209 

execration,  persecution,  and  imprisonment !  They  lived 
for  worldly  glory  and  display ;  he,  for  the  glory  of  the 
Saviour  and  eternal  life  ! 

Is  it  not  remarkable,  that  this  most  eminent  and 
eloquent  Apostle,  whose  speeches  and  whose  epistles 
are  inferior  to  none  of  the  ancients,  should  have  been 
so  overshadowed  in  this  world's  vision,  by  the  reputa- 
tion of  more  lofty  and  presumptuous,  but  still  inferior 
men  ?  The  secret  consists  in  this  :  the  Christian  de- 
spises worldly  renown,  and  fixes  his  hopes  above ;  that 
anticipated  reward  is  sufficient  for  him  in  the  world's 
eyes ;  and  it  is  not  more  incompatible  with  the  saintly 
character  to  desire  the  world's  applause,  than  it  is  with 
the  world's  character  to  accord  it. 

But  descending  from  the  Divine  science,  as  it  may 
be  called — from  this  mountain,  this  sky-capped  moun- 
tain, into  the  sequestered  vale  of  life ;  from  public,  and 
turbulent,  and  ambitious  scenes,  to  private,  retired,  and 
social  relations,  has  eloquence  still  lost  its  charm  ?  On 
the  contrary,  it  is  there  that  we  witness  its  chief 
beauty,  its  supreme  and  most  despotic  control;  it  is 
the  very  life  of  the  circle  that  revolves  around  it ;  it 
is  the  sun  of  the  whole  system,  and  imparts  to  it  its 
light,  its  heat,  and  its  motion ;  it  is  ever  changing, 
and  ever  new. 

"  Now  'tis  like  all  instruments, 
Now  like  the  lonely  lute ; 
And  now  'tis  like  an  angel's  song, 
That  bids  the  Heavens  be  mute  I" 


210  THE    FORUM. 

See  the  lawyer  in  his  office ;  the  pastor  at  the  family 
fireside ;  the  priest  at  the  confessional ;  the  father  in 
the  bosom  of  his  family ;  the  physician  in  the  chamber 
of  sickness,  or  of  death — is  eloquence  nothing  there  ? 
It  has,  in  all  these  positions,  sustained  many  a  droop- 
ing, and  subdued  many  a  proud  spirit ;  banished  des- 
pair from  the  bosom,  and  bound  up  many  a  bruised  and 
broken  heart.  Is  it  nothing  in  enforcing  the  virtues, 
or  administering  the  hospitality  of  the  domestic  board  ? 
Nothing,  in  soothing  and  blending  unsocial  feeling  into 
harmony !  Nothing,  in  infusing  the  delightful  princi- 
ples of  morality  and  religion  into  those  immediately 
around  us  ?  Nothing,  in  the  familiar  colloquial  inter- 
course of  social  life  ?  Nothing,  in  winning — nothing, 
in  improving — nothing,  in  preserving  the  affections  of 
those  we  love  ?  N.othing,  in  stimulating  or  sustaining 
virtue  ?  Nothing,  in  rebuking  and  repressing  vice  ?  If 
eloquence  be  incompetent  to  all,  or  any  of  these  tasks, 
no  human  power  is  adequate  to  their  accomplishment. 
Printing  will  not  answer ;  there  the  press  cries  craven, 
and  gives  up  the  conflict.  Writing  will  not  answer ; 
for  before  the  essay  is  prepared,  the  occasion  to  which 
it  is  directed  has  too  frequently  passed  away.  In  a 
word,  wealth,  and  power,  and  authority,  are  weak- 
ness, vanity  and  folly,  when  confronted  by  learning 
and  eloquence.  A  triumphant  orator  is  as  far  supe- 
rior to  a  successful  general,  as  are  the  enjoyments  of 
the  immortal  mind,  superior  to  the  gratification  of  the 
depraved  appetites  of  our  decaying  bodies. 


FORENSIC    ELOQUENCE.  211 

Nay,  who  would  not  rather  be  the  most  eloquent 
man  of  his  day,  than  even  the  President  of  the  United 
States  ?  The  latter  sways  a  political  authority,  for 
which  he  depends  upon  the  public  voice — the  former  a 
moral  and  intellectual  sceptre,  which  he  sways  in  his 
owrn  absolute  right. 

To  conclude.  In  all  the  pursuits  of  life,  then,  we 
should  be  ever  mindful  of  all  the  advantages  of  elo- 
quence ;  improve  them  daily,  hourly,  unceasingly. 
There  is  no  situation  so  mean,  that  they  cannot  dignify 
it;  there  is  no  elevation  so  high,  that  they  cannot  exalt 
it.  Without  them,  knowledge  is  the  miser's  wealth, 
and  only  cheers  the  owner;  with  them,  the  treasures 
of  the  mind  are  scattered  or  diffused  to  the  four  quar- 
ters of  the  earth,  and  having  imparted  their  benefits  to 
others,  like  the  bread  cast  upon  the  waters,  shall  be 
returned  after  many  days.  Oratory,  however,  let  me 
finally  observe,  is  not  a  mere  castle  in  the  air — a  fairy 
palace  of  frost-work,  destitute  alike  of  substance  and 
support.  It  may  rather  be  compared  to  a  magnificent 
temple,  constructed  of  Parian  marble,  sustained  by 
pillars  that  shall  endure  for  ages,  exhibiting  the  most 
exact  and  admirable  symmetry,  and  combining  all 
orders,  varieties,  and  beauties  of  architecture. 


CHAPTER  II. 


REVIEW  OF  THE  PRACTICE  OF  THE  LAW  BEFORE  THE  REVOLUTION— AND 
JUDGES  AND  MEMBERS  OF  THE  BAR. 


IN  his  "  Lives  of  the  Chancellors  and  Chief  Justices 
of  England,"  Lord  Campbell  repeatedly  complains  of  his 
inability  to  trace  them  through  the  lapse  of  more  than 
five  centuries.  But  although  it  is  certainly  easier  to 
prosecute  our  researches  through  little  more  than  a  cen- 
tury and  a  half,  than  to  thread  the  labyrinth  of  five  cen- 
turies, yet  from  the  records  and  cotemporaneous  history 
derived  from  the  British  archives,  a  much  better  clue 
is  to  be  obtained,  than  any  possessed  by  us.  But, 
without  repining  at  evils  which  we  cannot  cure,  let  us, 
with  the  imperfect  lights  and  means  supplied,  take  a 
hasty  retrospect  of  what  may  be  called,  the  birth  and 
infancy  of  the  State  of  Pennsylvania.  Indeed,  the 
very  difficulty  at  this  time  encountered,  in  procuring 
authentic  information  upon  the  subjects  proposed  to  be 


BEFORE    THE    REVOLUTION.  213 

treated  of  in  this  chapter,  is  strong  evidence  in  itself  of 
the  necessity  that  exists  for  redeeming  without  delay, 
the  earlier  events  of  our  history  from  the  grasp  of  for- 
ge tfulness.  Every  passing  day  increases  the  labors 
of  research,  and  a  few  years  will  obliterate  and  con- 
sign to  utter  oblivion,  all  that  we  should  desire  to 
remember  and  preserve  of  our  past  annals.  The  ori- 
gin of  societies,  communities,  and  nations,  like  the 
youth  of  individuals,  gives  some  denotement  of  their 
future  career,  and  furnishes  to  others  those  examples  of 
wisdom  and  virtue,  which  it  would  be  proper  to  emu- 
late ;  or  those  instances  of  folly  or  vice,  which  it  is 
commendable  to  avoid.  When  we  are  told  that  Penn's 
treaty  with  the  Indians  was  the  only  known  treaty, 

"  Never  sworn  to,  and  never  broken,"* 

we  may  well  be  proud  of  the  great  founder  of  our 
native  State,  and  be  at  no  loss  to  understand  the  in- 
fluence she  has  always  exercised  and  maintained,  in 
regard  to  all  the  other  colonies.  We  may  readily  com- 
prehend her  peaceful  tendencies,  her  commercial  repu- 
tation, her  civil  and  religious  liberty,  her  moral  and  po- 
litical ascendency,  her  probity  and  patriotism.  Honest 
and  conscientious  youth,  is  at  least  an  earnest  of  pious 
and  exemplary  old  age.  But  without  further  prelude, 
let  us  approach  our  task. 

*  Voltaire :  "  Dixon's  Liie  of  Penn,"  p.  216. 


214  THE    FORUM. 

Any  detail  of  the  earlier  history  of  the  ante-Revo- 
lutionary courts,  would  afford  no  great  interest,  and 
could  not  now  be  given  with  much  accuracy.  Mr. 
Penn's  religious  sentiments  made  him  desirous  of 
having  the  civil  differences  of  his  colonists  settled  in 
an  amicable  way,  or  at  least,  by  tribunals  having  as 
little  of  the  name,  machinery,  and  "terrors  of  the 
law,"  as  possible.  In  a  community  composed  chiefly 
of  Quakers,  a  good  many  disputes,  though  wholly  secu- 
lar, were  settled  by  "  Friends,"  either  in  "  meeting"  or 
out  of  it ;  and  the  habits  and  spirit  of  their  amicable 
mode  of  adjustment,  extended  beyond  the  limits  of 
this  peaceful  sect. 

We  find  "  the  Peace-makers,"  as  they  are  called,  an 
established  part  of  Mr.  Penn's  judicial  machinery  in 
1683.  Of  whom,  or  of  how  many  persons,  this  body 
was  composed,  we  know  not ;  their  office  would  seem 
to  have  been  diplomatic,  quite  as  much  as  judicial,  and 
to  have  depended  more  on  their  address,  than  on  their 
law  and  learning.  They  probably  negotiated,  going 
from  party  to  party,  and  heard  matters  privately,  and 
prior  to  the  litigants  being  handed  over  to  the  "  tor- 
mentors," like  to  which  Scriptural  and  Jewish  institu- 
tion, the  "County  Court"  would  seem  in  the  early 
times  of  the  colony,  to  have  been  very  much  consi- 
dered. The  Provincial  Minutes,*  for  example,  tell 
us  that,  when  one  Richard  Wells  made  his  complaint 

*  Vol  I.,  P.  34. 


BEFORE    THE    REVOLUTION.  215 

against  one  of  his  neighbors,  it  was  "  ordered  that  he 
be  referred  to  the  Peace-maker 's,  and  in  case  of  refusal, 
to  the  County  Court."  So,  in  another  case,*  we  find 
the  parties  "  advised  to  make  the  business  up  between 
themselves  ;  otherways  to  have  a  trial  by  the  "  County 
Court."  We  find,  also,  at  a  later  date,  some  proceed- 
ings of  the  Provincial  Council,  then  the  High  Court  of 
Errors  and  Appeals — Mr.  Penn,  himself,  presiding  as 
Proprietary  and  Governor — showing  the  same  disposi- 
tion to  dispense  with  the  judicial  apparatus  deemed 
in  modern  times,  so  great  a  blessing :  they  are,  in  the 
case  of  "Andrew  Johnson,  pl'ff,  v.  Hance  Peterson, 
deft,"  a  case  heard,  considered  and  adjudged,  on  "the 
13th  day  of  the  Third  month,  1684."  We  have  no 
"  statement  of  the  case,"  as  reporters  call  it,  nor  any 
arguments  of  counsel,  but  the  decree  is  given  with 
great  clearness ;  it  is  worthy  of  transcription,  not  only 
as  showing  how  far  the  modern  formalities  of  jury 
trials,  &c.,  were  thought  to  be  necessary  in  the  State, 
but  also  as  proving  to  how  early  a  date  that  care  of 
judicial  records,  which  is  so  peculiar  to  Pennsylvania — 
and  has  been  so  often  mentioned  to  its  honor  in  other 
States,  and  at  Washington — was  observed  and  enforced 
by  William  Penn  himself.  The  decree  is  :f  "  The 
Governor  and  Council  advised  them  to  shake  hands, 
and  to  forgive  one  another;  and  ordered  that  they 
should  enter  into  bonds  for  £50  a  piece,  for  their  good 

*  Vol.  I.,  p.  51.  t  W.,  p.  52. 


216  THE    FORUM. 

abearance,  weh  accordingly  they  did.  It  was  also 
ordered  that  the  RECORDS  OF  COURT  concerning  that  busi- 
ness, should  be  BURNT." 

Mr.  Penn  took  great  care,  also,  that  the  bar — so  far 
as  a  necessity  existed  for  there  being  a  bar  at  all — 
should  be  a  very  pure  ministry  indeed,  and  be  inte- 
rested in  the  settlement,  instead  of  in  the  fomentation  of 
quarrels.  Such  decisions  as  Foster  v.  Jack,*  in  which 
"  the  dignity  of  the  robe"  was  scouted,  and  the  profes- 
sion put  much  upon  the  footing  of  "any  mechanical  art;" 
or,  as  Ex  parte  Plitt,f  by  which  it  was  decided  that 
counsel  might  honorably  "go  snacks"  with  client,  will 
find  no  precedents  in  our  early  laws  and  practices.  It 
was  enacted  by  lawj  in  Pennsylvania,  as  early  as  1686, 
"  for  the  avoiding  of  too  frequent  clamors  and  manifest 
inconveniences,  which  usually  attend  mercenary  plead- 
ings in  civil  causes,"  "  that  noe  persons  shall  plead  in 
any  civill  causes  of  another,  in  any  court  whatsoever 
within  this  province  and  territories,  before  he  be  so- 
lemnly attested  in  open  court,  that  he  neither  directly 
nor  indirectly,  hath  in  any  wise  taken,  or  will  take  or 
receive  to  his  use  or  benefit  any  reivard  whatsoever,  for 
his  soe  pleading,  under  the  penalty  of  £5,  if  the  con- 
trary be  made  appear."  And  it  had,  prior  to  this,  by 
the  laws  agreed  upon  in  England,§  been  enacted  "  that 

*  4  Watts,  p.  337.  f  2  Wallace,  Jr.,  p.  454. 

J  Provincial  Minutes,  vol.  I.,  p.  122. 

\  Hall  and  Sellers'^  Laws ;  Appendix  by  Kinsey,  C.  J.,  p.  3. 


BEFORE    THE    REVOLUTION.  217 

in  all  courts,  all  persons,  of  all  persuasions,  may  freely 
appear  in  their  own  way,  and  according  to  their  own 
manner,  and  there  personally  plead  their  own  cause 
tliemselves,  or,  if  unable,  by  their  friends" 

Coming  to  a  later  date  and  more  advanced  state  of 
the  colony,  we  have,  as  early  as  1705,  the  Arbitration 
Law  of  that  year,  declaring  that  parties  having  ac- 
counts to  produce  one  against  another,  may  consent 
to  a  rule  of  court  for  referring  the  adjustment  thereof 
to  certain  persons,  mutually  chosen  by  them  in  open 
court,  whose  award,  when  approved  of  by  the  court 
and  entered  upon  the  record,  should  have  the  effect 
of  a  verdict  given  by  twelve  men.*  Now,  by  these 
various  manifestations  and  enactments,  lawyers  and 
juries  were  meant  to  be  dispensed  with  in  a  body,  and 
suitors  being  without  lawyers,  the  courts  were,  of 
course,  a  good  deal  without  law.  Immense  numbers 
of  such  disputes  as  arose  in  those  days  of  simple  con- 
cerns, where  the  Legislature  of  the  State  declaring, 
that  "whereas,  there  is  a  necessity,  for  the  sake  of 
commerce,  that  the  growth  or  produce  of  the  territo- 
ries annexed  to  Pennsylvania,  should  pass  in  lieu  of 
money"  enacted,  that  "  wheat,  rye,  Indian  corn,  barley, 
oats,  pork,  beef,  and  tobacco,  shall  be  accounted  current 
pay,  at  the  market  price,"f — disputes,  chiefly  of  fact, 
and  involving  no  points  which  a  good  understanding 
and  familiarity  with  business  could  not  adjust — were 

*  Bradford's  Laws  of  1728,  p.  73.  t  Id->  P-  25- 

VOL.  I. — 15 


218  THE    FORTJM. 

settled  by  "reference,"  without  any  lawyers  at  all. 
And  in  the  provincial  days  of  the  eighteenth  century, 
such  men  as  Joseph  and  Edward  Shippen,  Charles 
Willing,  Israel  Pemberton,  Samuel  Powel,  John  Stam- 
per, Peter  Baynton,  John  Kearsley,  Clement  and  Wil- 
liam Plumstead,  with  a  few  others,  made,  pretty  much, 
a  court  de  facto,  under  the  arbitration  law,  by  which 
immense  numbers  of  disputes  were  finally  and  wisely 
settled,  just  as  in  later  days  we  knowr  that  Robert 
Morris,  Tench  Francis,  Archibald  McCall,  Francis 
Gurney,  John  Nixon,  and  a  few  others  known  in  our 
city  history,  who  were  constantly  acting  as  referees, 
settled  the  great  questions  of  commercial  difference 
between  their  brethren  of  the  Exchange,  much  better 
than  the  best  courts  could  have  done  it  for  them. 

The  spirit  of  that  fiction  of  law,  known  as  Quo  mi- 
nus, by  which  suitors  in  England  brought  their  cases — 
though  not  cases  of  revenue — into  the  Exchequer, 
seems  to  have  been  invoked  at  an  early  date  in  Penn- 
sylvania, for  the  advancement  of  references.  The 
Arbitration  Act  of  1705,  we  have  seen,  contemplated 
references  only  where  the  parties  had  "accounts  to 
produce  one  against  another."  But  in  practice,  the 
Act  was  extended  to  other  actions.  It  was  probably 
found  necessary  to  do  so,  to  give  better  equitable  relief 
than  we  could  otherwise  get.  We  have  the  record  of  a 
reference,  from  the  "  Supreme  Court,  April  term,  1765," 
in  which  Timothy  Peaceable,  lessee  of  John  Fox,  sues, 


BEFORE    THE    REVOLUTION.  219 

among  other  persons,  our  respected  "Benjamin  Frank- 
lin," philosopher,  &e.,  in  ejectment;  the  property,  whose 
title  was  involved,  being  "  a  certain  lot  of  ground,  situ- 
ate on  the  south  side  of  High  street,  between  Third 
and  Fourth  streets,"  &c.  It  was,  we  see,  part  of  the 
well  known  property,  along  what  is  now  called  Frank- 
lin Court,  and  on  which  Dr.  Franklin  had  his  residence. 
The  referees  were  Thomas  Willing,  Philip  Syng,  and 
Redmond  Conyngham.  Observe  the  award !  dated  Jan- 
uary 25th,  1766.  What  Lord  Chancellor  ever  made 
a  better  ?  "  We  do  find,"  says  this  decree,  "  that  the 
title  to  the  same  lands  and  hereditaments  is  in  the 
plaintiff;  but  that,  nevertheless,  the  defendants  have 
an  equitable  claim  thereto ;  wherefore  we  are  of  opi- 
nion, that  in  justice  and  equity  the  lessors  of  the 
plaintiff  ought  to  sell  and  dispose  of  the  said  lands  and 
hereditaments  to  the  defendants ;  and  we  do  accord- 
ingly award,  that  the  lessors  of  the  plaintiff  shall,  on 
the  payment  of  the  sum  of  five  hundred  pounds  lawful 
money  of  Pennsylvania,  to  them,  by  the  defendants, 
convey  and  release  to  the  said  defendants  respectively, 
the  said  several  lots  and  lands  in  fee ;  which  said  sum 
of  five  hundred  pounds,  we  do  settle  and  fix  as  the 
price,  which  ought  in  equity  and  good  conscience,  to 
be  paid  by  the  defendants  to  the  lessors  of  the  plain- 
tiff, in  lieu  of  the  lots  and  lands  aforesaid ;  and  do 
accordingly  award  the  same  to  the  plaintiff,  in  satisfac- 
tion of  the  said  lands  and  hereditaments.  We  are 


220  THE  FORUM. 

likewise  of  opinion,  that  in  the  conveyances  and 
releases  of  the  lessors  of  the  plaintiff  to  the  defend- 
ants, there  ought  to  be  contained  covenants  of  warranty 
against  themselves  and  their  heirs,  and  the  heirs  of 
George  Fox,  the  original  purchaser.  Lastly,  we  do 
award,  that  the  costs  of  suit  and  the  necessary  ex- 
penses of  the  referees,  be  paid  equally  by  both  parties" 

So  satisfactory  does  this  system  of  "reference," 
established  by  our  ancestors  in  1705,  appear  to  have 
proved  itself,  both  to  the  profession  and  people,  that 
it  long  survived  the  Revolution;  and  as  lately  as 
1790,  when  such  a  man  as  Mr.  Shippen  was  presiding 
in  the  Common  Pleas,  and  Chief  Justice  M'Kean,  with 
his  able  associates,  were  on  the  Supreme  Bench,  we 
find  it  still  greatly  resorted  to.  And  so  well-grounded 
had  it  become,  that  one  motive  of  Mr.  Dallas  in  pub- 
lishing his  Reports  in  1790,  is  stated  by  him  in  his 
preface,  to  be,  their  "  use  in  furnishing  some  hints  for 
regulating  the  conduct  of  referees,  to  whom,  according 
to  the  present  practice,  a  very  great  share  of  the  ad- 
ministration of  justice  is  entrusted." 

We  may  find,  perhaps,  another  reason — more  flat- 
tering to  the  bar — for  the  great  extent  to  which  dis- 
putes, in  our  earlier  history,  were  peaceably  adjusted. 
The  bar,  in  the  days  of  the  Province,  was  much  more 
than  now,  the  profession  of  a  special  social  class.  The 
honor  of  the  barrister  was  united  with  the  name*  of 

*  See  inscription  on  the  monument  of  Samuel  Hassel,  in  the  grounds 


BEFORE    THE    REVOLUTION.  221 

the  barrister,  and  when  men  by  any  possibility,  could 
settle  their  disputes  without  the  aid  of  the  lawyer,  or 
needed  his  aid  only  in  the  character  of  a  friendly  coun- 
sel and  intercessor,  the  courts  and  the  bar  both  felt, 
we  may  presume,  that  their  highest  offices  were  per- 
formed. We  have  seen  the  terms  of  an  early  enact- 
ment, about  "  mercenary  pleading ;"  and  the  spirit  of 
the  law  remained  after  its  letter  may  have  been  re- 
pealed. 

With  such  laws,  and  such  popular  dispositions  as  we 
have  indicated,  we  can  understand  what  is  otherwise 
difficult  of  comprehension,  that  the  Court  of  Common 
Pleas,  prior  to  the  Revolution,  had  scarcely  ever  a 
single  lawyer  upon  its  bench ;  that  to  be  "  learned  in 
the  law,"  was  not  a  requisite  for  appointment  to  the 
judicial  office ;  and  that,  as  we  believe,  the  bench  was 
composed — in  the  associate  part  of  it,  certainly — of 
such  aldermen  of  the  city,  or  justices  of  the  peace 
from  the  county,  as  chose  to  set  in  bane,  in  a  solemn 
way.  From  the  causes  mentioned,  however,  the 
court,  in  its  earlier  history  especially,  was  relieved 
of  much  that  would  otherwise  have  engrossed  its  time ; 
and  of  much,  perhaps,  that  if  tried  with  the  technical 
formality  of  English  law,  it  would  have  been  hardly 
able  to  go  through.  In  addition  to  this,  the  Recorder 
of  the  city,  who  was  usually,  if  hot  always,  a  lawyer, 

of  Christ  Church,  in  which  this  old  member  of  the  profession  is  styled 
"  Barrister-at-law." 


222  THE  FORUM. 

presided  in  the  Mayor's  Court,  as  it  was  then  and  long 
afterwards  called;  a  court  in  which  the  jury  were 
regularly  summoned  by  the  mayor's  writ.  To  this 
jurisdiction  belonged  the  trial  of  most  crimes  commit- 
ted within  the  old  "City;"  then — as  being  the  only 
populous  part  of  the  county — the  chief  seat  of  crime ; 
so  that  the  judges  of  the  Common  Pleas,  sitting  as 
the  Quarter  Sessions,  were  relieved  of  much  of  the 
most  disagreeable,  as  wrell  as  the  most  onerous,  busi- 
ness which  now  afflicts  them.  The  Court  of  Common 
Pleas,  under  its  different  forms  of  Orphans'  Court  or 
Quarter  Sessions,  was  occupied,  it  will  be  thus  seen, 
chiefly  with  such  civil  affairs  as  required  the  executive 
order  and  action  of  the  court,  rather  than  its  judicial 
function ;  such  as  the  laying  out  of  roads,  the  appoint- 
ment of  certain  city  officers,  perhaps ;  with  many  other 
duties  of  like  kind,  now  transferred  by  the  progress  of 
the  times,  to  the  wisdom  of  the  people ;  the  granting 
of  licenses,  discharge  of  insolvents,  appointments  of 
guardians,  confirmation  of  partitions,  regulation  of  the 
wharves,  I  suppose,  and  other  matters  now  attended 
to  by  the  wardens  of  the  port.  Great  trusts,  no  doubt, 
were  reposed  in  them,  and  their  jurisdiction  was  at 
once  legislative  and  judicial;  common  law,  equitable 
and  prudential:  but  in  earlier  times  especially,  it  was 
a  jurisdiction  which' required  the  arlitrium  loni  viri 
much  oftener  than  such  learning  as  is  now  necessary 
for  the  proper  discharge  of  the  judicial  office. 


BEFORE    THE    REVOLUTION.  223 

We  have  an  obituary,  in  print,  of  ISAAC  NORRIS,  for 
some  years — made  by  commission,  we  presume,  rather 
than  by  special  education  in  the  law — though  of  this 
we  are  not  certain — the  "  President  of  the  Court."  He 
died  in  June,  1735,  and  the  obituary  referred  to,  in 
giving  a  beautiful  character  of  him,  rather  indicates  at 
the  same  time,  what  the  office  of  the  judicial  function- 
aries of  that  day  required.  He  was  a  merchant ;  as 
he  was  also,  for  upwards  of  thirty  years,  a  member  of 
the  Provincial  Council.  "His  great  abilities,"  says 
this  obituary,  "  in  the  discharge  of  his  duty  in  each  of 
these  stations,  made  him  to  be  justly  esteemed  one  of 
the  most  considerable  men  in  the  government;  his 
courteous  deportment  and  affability  gained  him  the 
love  and  respect  of  many.  A  quickness  of  apprehen- 
sion, liveliness  of  expression,  and  soundness  of  judg- 
ment met,  and  were  remarkably  conspicuous  in  this 
good  man ;  nor  did  it  appear  that  the  age  of  sixty-four 
had  impaired  any  of  these  valuable  qualities.  None 
were  more  frequently  applied  to  for  composing  differ- 
ences than  Mr.  Norris,  and  few  succeeded  better  in 
good  offices  of  this  kind ;  his  reputation  for  sense 
and  integrity  being  so  well  established,  that  both  par- 
ties willingly  submitted  themselves  to  the  determina- 
tion of  his  superior  understanding."  No  mention 
seems  to  be  made  of  his  learning  or  abilities  as  a  laiv- 
yer ;  and  it  was  rather,  we  suppose,  as  a  respected 
citizen  and  a  good  man,  vested  with  an  official  posi- 


224  THE  FORUM. 

tion,  that  his  judicial  qualities  had  their  field  of  useful 
exercise.  He  valued  his  law  books  at  £56,  and  we 
have  seen  some  of  them  in  this  day  with  his  name  in 
them,  but  have  never  seen  any  evidence — as  we  have 
in  the  case  of  his  cotemporaries,  Kinsey  and  Hamilton 
— of  what  in  this  day  we  should  look  for,  as  the  proofs 
of  much  professional  learning.  We  cannot  say,  how- 
ever, that  it  may  not  have  existed ;  a  century  and  a 
quarter  rises  up  between  this  time  and  his,  to  inter- 
cept our  view.* 

Indeed,  at  that  day,  law  itself  was  a  simpler,  sci- 
ence than  now ;  we  had  not  a  single  volume  of  reports 
in  America,  and  only  about  fifty  from  England.  We 
had  not  yet  fairly  passed  from  the  feudal  into  the 
commercial  existence.  The  rules  of  evidence  were 
much  less  attended  to ;  and  if  a  man  understood  a  few 
Acts  of  Assembly,  and  knew  Dalton's  Justice  of  the 
Peace,  he  had  all  the  legal  education  which  any  one 
could  teach,  and  almost  all  that  any  could  attain. 

*  There  is  a  portrait — if  we  remember — of  Mr.  Norris,  in  the  Gallery 
of  Portraits — now  quite  numerous — in  the  Hall  of  the  Historical  Society 
of  Pennsylvania.  Whether  an  original,  or  copy,  we  know  not.  Which- 
ever it  be,  it  has  no  considerable  merit  as  a  work  of  art,  and  less  interest 
otherwise,  than  most  of  the  portraits  in  that  collection.  The  dress 
is  plain,  in  the  Quaker  style,  and  void  of  any  of  the  marks  of  a 
judicial  costume ;  the  countenance,  owing,  perhaps,  to  the  artist's  want 
of  skill,  is  impressed  by  nothing  remarkable,  except  the  characteristics 
which  are  usually  supposed  to  indicate  his  religious  sect.  We  presume 
the  portrait  hardly  does  its  subject  justice. 


BEFORE    THE    REVOLUTION.  225 

There  is  no  doubt,  indeed,  however  much  our  pride 
may  be  gratified  in  magnifying  the  greatness  of  our 
early  colonists,  that  for  the  first  ten  or  twelve  years 
after  the  charter,  the  legal  proceedings  were  of  a  very 
simple  and  unlearned  kind,  and  indicate  a  state  of 
society,  generally,  pretty  coarse  and  ignorant;  and 
sometimes,  pretty  ridiculous  also.  Pennsylvania  was 
in  that  day  of  the  kind  of  nation,  in  which  "  the 
one-eyed  are  kings ;"  and  when  we  hear  of  lawyers 
and  of  judges,  we  must  not  look  for  Tilghmans,  for 
Binneys,  for  Washingtons,  or  Marshalls.  The  town,  as 
yet,  was  not  much  more  than  a  collection  of  huts  or 
log  houses,  and  its  population  an  association  of  traders, 
adventuring  their  fortunes  in  a  region  from  which  the 
savages  were  scarcely  dispossessed.  They  brought 
large  names  from  England,  and  gave  them  to  humble 
things.  Some  idea  may  be  formed  of  what  the  judi- 
cial labors  of  a  chief  justice  came  to,  from  such  a  fact 
as  this,  that  at  a  much  later  day  all  the  proceedings  of 
so  considerable  a  jurisdiction  as  the  Orphans'  Court — 
for  the  space  of  twelve  years,  from  1719  to  1731 — 
though  the  petitions,  evidence,  and  orders  in  each 
case,  are  set  out  very  much  more  full  than  is  now  cus- 
tomary, occupy  but  sixty-nine  pages  of  a  docket,  whose 
leaves  were  of  the  size  only  of  ordinary  cap  paper. 
Large  margins  also,  are  left  at  the  top,  bottom,  and 
sides,  and  the  lines  having  large  spaces  between  them, 
and  being  written  mostly  in  court-hand,  make  what 


226  THE  FORUM. 

printers  would  call  yery  "lean"  matter.     About  five 
small  pages,  therefore,  contain  the  whole  records  of  a 
year.*     No  great  observance  of  formalities,  I  presume, 
took  place  in  any  court,  either  civil  or  criminal.     A 
few  years  ago,  it  is  known  that  many  of  the  early 
records,  both  civil  and  criminal,  of  the  city,  were  deli- 
vered over  by  the  county  commissioners  of  that  day 
to  the  janitor  of  the  public  buildings,  for  such  custody 
as  this  functionary  chose  to  make  of  them.     Finding 
them  useful  for  nothing  so  much  as  to  kindle  the  fires 
of  his  court  rooms,  this  officer  soon  applied  most  of 
them  to  that  purpose.     Happening  one  day  to  hear 
what  he  was  doing,  a  gentleman  of  the  bar  gave  direc- 
tions for  the  rescuing  of  a  good  many  which  were 
curious  either  in  illustration  of  our  early  society  or  of 
our  provincial  law,  whose  progress  was  of  course  much 
concurrent  with  it.     They  are  now  bound  in  a  volume, 
in  the  possession  of  the  Historical  Society  of  Pennsyl- 
vania.    Copies  of  a  few  of  them,  chiefly  presentments 
of  the  grand  jury,  between  1700  and  1704,  may  be 
seen  in  the  Appendix  A,  and  will  well   repay  the 
reading  of  them.     They  are  chiefly  presentments  of 
offences,  the  notice  of  which  could  belong  only  to  a 
very   primitive   state    of   society — of   one    man,    for 
"swaring  three  oths  in  the  market  place,  and  also  for 

*  For  a  particular  account  of  these  records,  see  note  to  Cromwell  v. 
The  Bank  of  Pittsburgh,  2  Wallace,  Jr.,  589. 


BEFORE    THE    REVOLUTION.  227 

uttering  two  very  bad  curses ;" — of  another,  for  "being 
maskt,  or  disguised  in  woman's  apparel ;  it  being  against 
the  law  of  God,  the  law  of  this  province,  and  the  law 
of  nature,  to  the  staining  of  holy  profession,  and  in- 
coridging  of  wickedness  in  this  place."  The  indict- 
ments are  generally  very  short,  without  any  technical 
language  whatever,  and  they  are  often  destitute  of 
what  was  then  in  England,  and  has  long  since  been 
deemed  here  a  requisite  legal  precision;  though,  as 
will  be  seen  by  reference  to  the  Appendix,  when  any 
want  of  substance  was  pointed  out  by  the  bar,  the 
court  appears  to  have  sustained  the  objection. 

After  1704,  the  indictments,  which  are  drawn  by 
one  of  the  Ashetons,  are  entirely  scientific ;  and  indeed 
all  the  proceedings  of  the  officers  or  the  court — pro- 
ceedings, I  mean,  only  clerical — appear  in  general  to 
be  good.  The  indictments  after  this  year,  however, 
present,  equally  with  these  before  them,  a  curious 
record  of  the  times,  though  less  than  the  earlier  ones, 
such  records  of  the  law.  There  are  great  numbers  of 
them  for  forestalling  the  markets  and  regrating;  al- 
though the  extent  of  the  purchases  do  not,  from  the 
specification  of  the  indictments,  appear  to  have  been 
alarming.  In  the  33  Geo.  II.,  Mrs.  Margaret  Hum  is 
presented  for,  that  "  in  open  market  she  did  buy,  re- 
grate,  and  into  her  hands  and  possession  did  get  and 
obtain  forty  fishes,  called  shad."  The  offence  is  charged 
to  have  been  committed  on  the  30^  of  April.  Francis 


228  THE  FORUM. 

Johnson,  indicted  at  the  same  time,  was  a  greater  ope- 
rator, for  he  had  obtained  one  hundred ;  but  both  got 
them  on  the  same  30th  of  April,  when,  unless  the 
season  was  backward,  or  the  Delaware  less  prolific 
than  now,  the  deprivation  to  the  public  would  not,  we 
think,  have  been  great.  John  Baskall  is  presented  for 
having,  on  the  kth  of  February,  regrated  "  ten  rock 
fish ;"  a  more  serious  offence  against  any  gentleman, 
who,  in  that  cold  month,  was  going  to  give  a  dinner : 
and  Lewis  Slainmin  is  presented  for  regrating  "  four 
bushels  of  apples."  Many  housekeepers,  just  now, 
would  commend  these  precedents  to  the  prosecuting 
attorney.  About  the  middle  of  the  century,  even 
before  "the  affair  of  1745,"  I  find  several  of  the  bre- 
thren of  St.  Andrews  in  trouble ;  some  of  them  are  in 
advance  of  Mr.  Thackeray,  and  are  presented  for  hav- 
ing publicly,  and  with  a  view  to  bring  our  Sovereign 
Lord,  the  King,  into  contempt,  said,  "  G — d  d — n 
King  George."  And  one  for  singing  a  song,  "  Charlie 
shall  have  his  own  again;"  his  name  was  Alexander 
Murray ;  all  honor  to  his  memory  !  The  juries,  how- 
ever, both  grand  and  petit,  seem,  for  some  years,  not 
to  have  made  an  advance  in  proportion  to  that  of  the 
king's  attorney,  if  we  may  credit  the  presentments. 
It  appears  by  one  of  them,  that  on  the  21st  of  Janu- 
ary, 1714,  Peter  Evans,  Esquire,  sends  to  Francis 
Phillips  a  challenge,  thus  expressed : 


BEFORE    THE    REVOLUTION.  229 

"'SlB : — You  have  basely  scandalized  a  gentlewoman  that  I  have 
a  profound  respect  for ;  and,  for  my  part,  I  shall  give  you  a  fair 
opportunity  to  defend  yourself  to-morrow  morning,  on  the  west  side 
of  Josa  Carpenter's  garden,  betwixt  seven  &  8,  where  I  shall  expect  to 
meet  you  gladio  cinctus.  In  failure  whereof,  depend  upon  the  usage 
you  deserve,  from 

"  Yours,  &c., 

"PET.  EVANS. 

"Jan.  21st,  1714. 

"  I  am  at  the  Pewter  Platter." 

Mr.  Francis  Phillips,  who  is  described  in  the  venire 
as  "  clerk/'  and  who,  if  he  was  not  in  holy  orders, 
acted,  we  must  think,  in  a  most  ungentlemanlike  way, 
handed  Peter  Evans  over  to  the  grand  jury,  who  found 
a  true  bill.  Having  pleaded  non  culp.,  he  was  regularly 
tried  :  the  jury  found  a  special  verdict,  as  follows  : — 

"  We,  of  the  jury,  do  find  that  Peter  Evans,  in  the 
indictment  mentioned,  did  send  a  letter  in  writing  to 
Francis  Phillips,  containing  these  words : — [letter 
quoted.]  If,  upon  the  whole,  the  court  do  judge  the 
words  contained  in  the  said  letter  to  be  a  challenge, 
then  we  do  find  the  said  Peter  Evans  guilty ;  but  if 
the  court  do  judge  the  words  contained  in  the  said 
letter  are  no  regular  challenge,  then  we  do  find  the 
said  Peter  Evans  not  guilty." 

The  next  entry  that  we  find,  is — "  CURIA  ADVISARI 
VULT  ;"  and  so  the  case  seems  to  have  ended.  Whether 
it  was  the  law  of  the  case,  or  the  honor  of  it — which 


230  THE  FORUM. 

is  the  more  probable — that  overcame  the  court  and 
jury,  and  caused  the  c.  A.  v.,  the  record  does  not  show, 
no  judgment  appearing  from  it  to  have  been  given. 

But  we  find  this  same  "  Francis  Phillips,  clerk," — 
who,  if  he  was  a  clergyman,  must  have  been  one  of 
the  few  disreputable  clergymen  who  were  here  before 
the  Revolution — very  soon  afterwards,  the  subject,  him- 
self, of  an  indictment,  for  having,  "  as  much  as  in  him 
lied,"  attempted  "  to  deprive,  annihilate,  and  contemn  the 
authority  of  the  recorder,  mayor,  and  justices  of  the 
peace,"  by  saying,  "  Tell  the  Mayor,  Richard  Hill,  and 
Robert  Asheton,  the  Recorder,  that  I  say  they  are  no 
better  than  rogues,  villains,  and  scoundrels."  It  would 
seem,  therefore,  that  if  Peter  Evans  did  not  win  the 
battle  "  on  the  west  side  of  Jos8  Carpenter's  wall,"  he 
did  clearly  so,  before  the  court  and  jury  assembled  to 
convict  him.* 

*We  are  wholly  unable  to  trace  this  gentleman,  Mr.  Peter  Evans,  and 
therefore  commend  his  memory  to  the  Historical  Society;  a  body  which,  as 
at  present  managed,  is  really  useful.  A  person  named  Evan  Evans,  was 
an  early  rector  of  Christ  Church,  and  we  are  a  little  afraid  that  Peter  was 
his  son ;  especially  as  we  find  a  gentleman  so  named  was  a  member  of  that 
parish,  a  contributor  to  the  completion  of  the  churchin  1739,and  atdifferent 
times  the  rectors,  and  also  accounting  warden.  If  Mr.  Francis  Phillips, 
"  clerk,"  was  a  clergyman  of  the  established  church,  our  suspicion  is  con- 
firmed by  the  place  fixed  for  the  combat.  "  Joshua  Carpenter"  seems  to 
have  been  a  great  friend  of  the* clergy,  and  unlike  some  of  the  wardens 
in  later  days,  fond  of  entertaining  them.  The  Reverend  Mr.  Talbot,  an 
English  clergyman  of  that  day,  was,  he  tells  us,  "  very  kindly  and  hospi- 
tably entertained  by  Mr.  Joshua  Carpenter,  at  his  house;"  where,  we 


BEFORE    THE    REVOLUTION.  231 

The  courts  appear  to  have  steadily  resisted  the 
popular  demand  for  cruel  punishments.  In  1717,  the 
grand  inquest,  with  so  respectable  a  citizen  as  Mr.  Wil- 
liam Fishbourn  as  its  foreman,  presents  as  follows  : — 
"  Whereas,  it  has  been  frequently  and  often  presented 
by  several  former  grand  juries  for  this  city,  the  neces- 
sity of  a  ducking-stool  and  house  of  correction,  for  the 
just  punishment  of  scolding,  drunken  women,  as  well 
as  divers  other  profligate  and  unruly  persons  in  this 
place,  who  are  become  a  public  nuisance  to  the  town 
in  general;  therefore,  we  the  present  grand  jury, 
earnestly  again  present  the  same  to  this  Court  of  Quar- 
ter Sessions,  desiring  their  immediate  care ;  that 
those  public  conveniences  may  not  be  longer  delayed, 
but  with  all  possible  speed  provided  for  the  detection 
and  quieting  such  disorderly  persons."  And  a  few 
years  later,  a  second  inquest,  with  Benjamin  Duffield 
at  its  head,  "  taking  in  consideration  the  great  disor- 
ders and  the  turbulent  behaviour  of  many  people  in 


learn,  that  he  lodged  for  six  weeks  at  a  time.  The  Reverend  Mr.  Fran- 
cis Phillips  was,  perhaps,  a  guest  of  Mr.  Carpenter  also,  and  not  to  give 
the  reverend  gentleman  too  long  a  walk  before  breakfast,  on  a  cold  win- 
ter's morning,  (21st  January,  1714,)  Mr.  Peter  Evans  considerately  invites 
him,  just  to  step  out  "betwixt  seven  &  8,"  gladio  cincttis,  "on  the  west  side 
of  Josa  Carpenter's  garden;"  where  he  may  have  "an  opportunity  to 
defend"  himself. 

There  was  a  Peter  Evans,  who  for  many  years,  was  Register  of  Wills 
of  the  province ;  but  he,  we  think,  was  not  this  gentleman. 


232  THE  FORUM. 

this  city,  present  the  great  necessity  of  a  ducking- 
stool  for  such  people.,  according  to  their  deserts." 

It  would  appear  by  these  records,  that  the  grand 
inquests  of  Pennsylvania  considered  the  offices  of  this 
"  conveniency"  much  greater,  than  those  which  com- 
mon law  assigned  to  it ;  to  wit — "  an  engine  of  correc- 
tion," for  "  common  scolds."  One  inquest  regards  it  ap- 
parently, as  having  the  qualities  of  the  "  fire  ordeal," 
and  recommends  it  as  a  "detective"  operator;  and 
the  other  seems  to  regard  it  as  proper  to  be  applied  to 
all  "  turbulent  people,"  of  either  sex,  in  the  city. 

Whether  this  last  recommendation  affected  so  many 
interests  as  to  awaken  opposition,  or  whether  the  court, 
of  its  own  motion,  resisted  these  earnest  and  repeated 
demands  of  the  jury,  we  cannot  tell.  The  ducking- 
stool,  we  think,  was  not  adopted. 

When  crimes,  however,  were  of  a  kind  really  to 
demand  severity,  the  court  appears  not  at  all  to  have 
withheld  it.  In  1729-30,  we  find,  for  example, 
Charles  Gallahan  sentenced,  for  a  criminal  offence, 
"  fifty  pounds ;  to  receive  at  the  carts  tail,  thirty-five  lashes 
on  his  bare  back  round  two  squares  of  this  city,  and  pay 
the  costs  of  prosecution."  The  court  exercised  also 
an  excellent  discretion,  it  appears ;  for  when  "  John 
Hendrick,  late  of  Philadelphia,  laborer,  on  the  21st 
day  of  October,  (being  the  first  day  of  the  week, 
called  Sunday,)  in  the  seventh  year  of  the  reign  of 
of  our  Lord  George  the  second,  by  the  grace  of  God, 


BEFORE    THE    REVOLUTION.  233 

of  Great  Britain,  France  and  Ireland,  king,  defender 
of  the  faith,  at  the  city  of  Philadelphia  aforesaid,  of 
his  own  impious  power  and  authority*  voluntarily, 
openly,  publicly,  and  contemptuously  molested,  vexed 
and  disturbed,  a  certain  congregation  of  people,  called 
Quakers,  in  a  certain  meeting-house  in  the  said  city, 
assembled  together  in  the  discharge  of  their  duty,  and 
in  the  worship  of  God,"  the  said  John  Hendrick  is  not 
sentenced  at  all,  as  in  the  last  case ;  but  in  a  spirit 
of  very  Christian  moderation — suggested,  likely,  by 
"Friends"  themselves — to  the  payment  of  five  shil- 
lings, and  "  to  stand  in  the  pillory  one  hour,  with  the 
offence  wrote  on  his  head."  So  far  for  these  curious 
records — commended,  as  we  have  seen,  by  our  county 
commissioners,  to  the  useful  purpose  of  lighting  fires. 
We  perceive,  by  the  legislative  enactments  of  the 
early  part  of  our  provincial  history — especially  many 
Acts  passed  in  1705 — as  the  Act  for  taking  lands  in 
execution,  &c. ;  the  Act  about  Arbitrations  and  De- 
faulking ;  the  Act  concerning  the  Probates  of  Written 
and  Nuncupative  Wills,  and  for  confirming  devises  of 
Lands,  and  several  others,  some  of  which  were  repealed 
by  the  queen  in  council ;  some  of  which  remain  at  this 
day  in  force  as  original  enactments,  and  others  of  which 
have  been  incorporated,  almost  verbatim,  into  our  Re- 

*  We  doubt  if  it  is  good  law — it  certainly  is  questionable  divinity — 
thus  to  ignore  "  the  malice  and  instigation  of  the  devil." 
VOL.  I. — 16 


234  THE  FORUM. 

vised  Code — that  there  was  no  want  in  the  legislative 
council,  at  an  early  date,  of  good  legal  mind  and  good 
legal  education.  But  whoever  the  lawyers  were,  they 
seem  to  have  been  inclined  to  make  a  Pennsylvania 
system  of  jurisprudence,  rather  than  to  introduce  the 
English ;  and  every  thing  relating  to  the  jurisprudence 
of  the  earlier  years  of  the  century,  has  a  very  plain 
and  practical  form.  We  take  it  to  be  possible,  that  we 
owe  these  laws  to  Andrew  Hamilton,  for  some  years, 
with  John  Kinsey,  the  only  great  lawyer,  it  would 
seem,  in  the  province.*  They  bear  the  impress,  we 
think,  both  of  his  intellect  and  his  character,  and  this 
idea  derives  confirmation  from  what  is  said  of  him  in 
a  printed  obituary.  To  whomsoever  we  owe  the  mo- 
delling of  our  early  system,  he  seems  to  have  had  a 
task  of  difficulty.  The  common  people  were  not  in- 
clined to  the  English  refinements,  and  the  queen  or 
king  in  council  generally  repealed  our  Acts,  which  were 
passed  to  supply  them. 

About  the  year  1745,  however,  there  appears  to  have 
been  adopted  by  at  least  a  portion  of  the  bar,  more 
dignified  conceptions  of  the  law,  and  a  more  scientific 
sort  of  professional  practice  than  had  hitherto  pre- 
vailed, among  such  lawyers  even  as  Andrew  Hamilton 
and  John  Kinsey.  Indeed,  a  great  change  appears 
about  this  time  to  have  taken  place  in  the  "  stratifica- 

*  See  post;  in  speaking  of  the  Vice-admiralty  Court. 


BEFORE    THE    REVOLUTION.  235 

tion"  of  our  colonial  society  generally.  Nearly  two 
generations  had  gone  since  the  colony  was  founded ;  it 
had  greatly  increased  in  wealth  and  population.  The 
exclusive  regime  of  the  Quakers  had  passed  away. 
The  Church  of  England  was,  perhaps,  coming  into  the 
ascendant,  if  not  of  numbers,  yet  of  liberality,  intelli- 
gence and  education.  In  1748,  Edward  Shippen, 
afterwards  Chief  Justice,  had  been  sent  to  the  temple 
to  be  educated;  as  at  a  later  date  was  Thomas  Willing, 
originally  designed  for  the  bar;  and  at  a  still  later, 
Joseph  Reed,  Benjamin  Chew,  Edward  Tilghman,  Jared 
Ingersoll,  William  Bawle  and  others.  In  1745,  we 
find  the  lawyers  barring  entails,  for  the  first  time, 
by  common  recovery;*  a  process  which,  before  that 
time,  they  would  seem  not  to  have  sufficiently  undei<- 
stood  to  resort  to,  since  we  know  that  entails  had 
been  extremely  odious,  and  two  ineffectual  legislative 
attempts  to  give  power  to  dock  them  by  common  deed, 
had  been  defeated  by  the  queen  in  council.^  Still  the 
organization  of  the  Common  Pleas  remained  the  same ; 
the  judges  being  yet,  as  before,  the  aldermen  of  the 
city  and  the  justices  of  the  peace  from  the  county; 
the  only  difference  being,  we  presume,  that  men  of  a 
higher  grade  of  education  and  intelligence,  than  as  a 
general  thing  had  before  been  common)  were  now  usu- 

*  Lyle  v.  Richards,  9  Sergeant  &  Rawle,  332. 

f  See  Acts  of  1705  and  1710;  Hall  &  Seller's  Laws,  Appendix,  by  Kin- 
sey,  p.  191. 


36  THE    FORUM. 

ally  invested  by  the  government  with  a  commission  of 
the  peace ;  or  that,  in  the  more  important  cases,  the 
less  competent  officers  retired  in  favor  of  those  more 
acceptable  to  the  suitors  and  the  council.  About 
1750,  we  find  BENJAMIN  FRANKLIN  seated,  at  the  age 
of  forty-four,  upon  the  bench,  and  we  may  infer  that 
considerable  attention  to  legal  forms  was  now  prevail- 
ing; as  he  tells  us,*  that  "after  attending  a  few  courts, 
and  sitting  on  the  bench  to  hear  causes,"  he  gradually 
withdrew ;  "  finding  that  more  knowledge  of  the  com- 
mon law  than  he  possessed,  was  necessary  to  act  in 
that  station  with  credit."  We  are  in  possession  of  a 
very  complete  record  of  a  case,  which  was  tried  while 
Franklin  was  on  the  bench ;  and  in  a  sheet  of  auto- 
graphs, made  and  owned,  as  well  as  very  highly  prized, 
by  the  late  Mr.  Ingraham,  but  now  obtained  for  the  use 
of  this  work,  for  which  it  has  been  lithographed,  may 
be  seen  the  fac  simile  of  his  signature  to  a  bill  of 
exceptions,  made  from  the  record  autograph,  which  is 
probably  unique,  it  is  the  case  of  Lawrence  William 
v.  William  Till,  No.  125,  of  June  term,  1749 ;  John 
Ross  was  counsel  for  the  plaintiff,  and  Tench  Francis 
for  the  defendant,  both  of  them  really  accomplished 
lawyers.  It  was  a  suit  of  unusual  magnitude  for  the 
Common  Pleas,  being  an  action  to  recover  £3794  19s. 
10 d.  sterling;  and  it  was  tried  before  THOMAS  LAW- 

*  Autobiography,  chapter  IX. 


BEFORE    THE    REVOLUTION.  237 

RENCE,  JOSHUA  MADDOX,  EDWARD  SHIPPEN,  and  BENJA- 
MIN FRANKLIN,  Esquires,  Justices.  The  pleadings  are 
in  the  most  regular  form  of  the  English  law ;  (see  Ap- 
pendix B,)  and  numerous  bills  of  exceptions  are  each 
signed  by  the  judges.  We  have  in  this  record  a  sin- 
gular exhibition  of  the  social  and  judicial  system  of 
the  province.  Taken  in  connexion  with  the  large  influ- 
ence of  "  Friends"  in  the  civil  concerns  of  that  day,  it 
seems  to  present  a  mixture  of  the  times  of  the  patri- 
archal government  with  that  of  the  reign  of  the  mer- 
chant princes,  and  that  of  the  highest  state  of  artificial 
English  law.  We  find  here  four  persons,  not  one  of 
whom  was  ever  at  the  bar,  nor,  so  far  as  we  know,  ever 
professionally  educated,  seated  on  the  seat  of  judg- 
ment, hearing  an  important  case  of  commerce,  and  ad- 
judging it  by  rules  of  scientific  common  law  jurispru- 
dence. Let  us,  with  a  view  of  marking,  so  far  as  we 
can,  one  epoch  in  the  history  of  our  provincial  jurispru- 
dence, record  what  few  facts  we  know  of  these  judges. 
Thomas  Lawrence,  whose  name  stands  first  upon  the 
list,  belonged  to  a  circle  of  distinction,  for  its  wealth, 
fashion,  and  family  importance  in  the  province,  but 
was  never  scientifically  bred,  we  presume,  to  the  law. 
He  is  not  to  be  confounded  with  his  son,  bearing  the 
same  name ;  a  man  like  his  father,  of  reputation.  The 
father,  we  suppose — though  possibly  the  son — is  the 
same  person  to  whom,  Franklin  tells  us,  that  he 
resigned,  in  1747,  the  colonelcy  of  his  Philadelphia 


238  THE    FORUM. 

regiment;  "a  fine  person,"  says  Franklin,*  and  "a  man 
of  influence."     The  father,  the  especial  subject  of  our 
notice,  was  a  merchant.     He  appears  to  have  been  a 
religious  man,  and  was  a  liberal  subscriber,  in  1729,  to 
the  completion  of  that  church  which,  at  the  distance 
of  a  century  and  a  half  from  the  time  it  was  built, 
remains  the  finest  church  edifice  in  Philadelphia ;  we 
speak,  of  course,  of  Christ  Church.     At  a  later  date, 
his  legal  knowledge  seems  to  have  been  called  in  requi- 
sition, to  prepare  drafts  of  a  petition  and  charter  for 
that  corporation;  a  duty  which  he  appears  to  have 
readily  and   promptly  performed.     He  came  to  the 
bench,  we  suppose,  in  1724,  and  died  in  office  in  1754. 
Joshua  Maddox,   of  whom  we  know  more,  was  an 
English   gentleman,    of   studious    and    contemplative 
tastes,  liberally — but  not,  we  believe,  professionally — 
educated  in  England ;  a  man  of  dignity  and  fortune. 
Though   a   scholar   unquestionably,  he   had   pursued 
commerce,  as  we  know — and  pursued  it  with  skill, 
reputation  and  success.     Yet  he  sat,  as  the  records  of 
the  Orphans'  Court  show,  from  March,  1741,  till  his 
death,  in  April,  1759,  a  term  of  eighteen  years,  upon 
the  seat  of  judgment,  constantly  partaking  in  its  coun- 
cils and  attending  its  adjudications ;  and  when  he  died 
at  the  age  of  seventy-four,  had  almost  become  personi- 
fied in  this  province  with  the  administration  of  its  local 


*  Autobiography,  chapter  VIII. 


BEFORE    THE    REVOLUTION.  239 

justice.*  Mr.  Maddox,  like  his  associate,  Justice  Law- 
rence, was  a  warden  of  Christ  Church,  in  the  burial- 
grounds  of  which,  at  the  corner  of  Fifth  and  Arch 
streets,  close  by  the  grave  of  his  other  associate, 
Franklin,  his  monument  may  yet  be  seen.  Edward 
Shippen,  also,  was  a  merchant — the  father,  we  think,  of 
the  Chief  Justice,  his  namesake,  who  afterwards  be- 
came so  eminent  on  the  bench ;  but  he,  himself,  was  a 
trader;  and  Franklin,  known  to  the  world  in  many 
capacities,  besides  those  of  a  statesman  and  a  philoso- 
pher, has  never,  we  think,  until  we  have  now  thus 
presented  him,  been  known  as  a  judicial  administrator 
in  the  Common  Pleas,  Orphans'  Court  and  Court  of 
Quarter  Sessions,  of  Philadelphia. 

Lawrence,  Maddox,  and  Franklin,  were  not  only 
associates  on  the  bench,  but  seem  to  have  been  other- 
wise engaged  in  useful  labors.  They  were  all  three  of 
them  founders  and  original  trustees,  in  1749,  of  the 
University  of  Pennsylvania. 

*  We  have  seen  a  few  of  his  books ;  among  them  Chrysostom's  Treatise 
De  Sacerdotio,  in  Greek  and  Latin.  It  is  filled  with  MS.  annotations  by 
the  Judge,  in  Latin,  showing  that  he  read  it  carefully  and  intelligently. 
At  the  end  of  another  volume  from  his  library,  a  huge  folio,  entitled, 
" Expositio  Epistolce  D.  Pauli  ad  Colossenses"  by  one  of  the  Bishops 
of  Salisbury,  we  find,  neatly  written,  this  entry  by  the  Judge:  i'Perlegi 
Tiunc  librum  eximium,  16  col.  Aprilis,  1T53,  J.  M."  His  MS.  annota- 
tions in  this  book,  also,  attest  that  he  perfectly  understood  the  intensitive 
force  of  "per,  in  composition."  The  book  had  been  read  by  him,  as  we 
suspect,  it  has  never  been  read  since;  though  it  has  been  in  the  hands  of 
scholars,  too. 


240  THE  FORUM. 

Such  was  the  Court  of  Common  Pleas  of  Philadel- 
phia, in  1749 ;  every  vestige  of  its  action,  so  far  as 
the  public  knows,  has,  in  little  more  than  a  century, 
become  almost  obliterated ;  as  is  manifest  by  the  sort 
of  history  of  it  which  we  are  obliged  to  give,  in  order 
to  give  any  history  at  all.  Such  as  it  was  in  1749,  we 
presume  it  remained  in  its  general  characteristics,  until 
it  was  changed  by  the  outbreak  of  the  Revolution. 
How  many  of  our  provincial  judges  joined  the  cause 
of  the  people,  we  cannot  state.  One — of  whom  we 
have  good  tradition — having  received  his  commission 
from  the  king,  was  not  quite  willing  to  swear  allegi- 
ance against  it,  to  the  subject.  The  judges  whom  we 
find  there  in  September,  1777,  were  James  Young, 
John  Ord,  Philip  Behm,  Plunkett  Fleeson,  Benjamin 
Paschall,  Peter  Evans,  Jesse  Richards,  and  David 
Todd.  We  know  no  great  deal,  and  nothing  with  cer- 
tainty, of  being  right  in  it,  about  any  of  these  persons, 
though  we  believe  these  are  the  names  of  men,  all 
of  whom,  are  known  to  antiquaries  and  genealogists  of 
our  city.  If  any  of  them  were  professional  men  be- 
fore being  on  the  bench,  the  tradition  of  their  fame 
has  passed,  in  this  generation,  into  dimness.  Mr. 
Fleeson,  we  know,  was  a  good  deal  before  the  public, 
and  was  an  active  magistrate  and  in  commission  of  the 
peace,  after  the  Revolution,  but  was  not  upon  the 
bench,  that  we  know  of.  The  history  of  the  courts 
after  1776,  belongs,  however,  to  a  later  term  than  that 


BEFORE    THE    REVOLUTION.  241 

embraced  by  this  memorial,  which  is  meant  to  be  con- 
fined to  the  province  alone. 

Whether  the  old  provincial  Court  of  Common  Pleas 
contrasts  to  the  advantage  or  disadvantage  of  some 
administrations  of  it  that  we  have  had  since,  or,  under 
our  popular  system,  are  likely  to  have  hereafter, 
every  one  will  determine  for  himself.  Whatever  may 
or  may  not  have  been  the  extent  of  its  acquaintance 
with  the  artificial  rules  of  modern  law,  it  was  no  doubt 
a  grave,  decorous,  and  dignified  body,  competent  to 
perform  all  the  duties  which  came  before  it ;  par  nego- 
tiis,  neque  supra.  Its  tenure  was  for  life.  In  its  power 
of  appointment  to  several  offices,  it  was  respectable 
for  its  public  authority ;  and  all  its  incumbents  were 
men  distinguished  for  weight  of  personal  character. 
We  know  little  of  the  formalities  which  belonged  to 
the  court  room,  nor  indeed — unless  it  was  in  Market 
street,  at  the  crossing  of  Second  street — do  we  know 
exactly  where  the  court  room  was.  We  have  reason 
to  believe,  however,  that  those  ceremonies  of  respect, 
which  the  wisdom  of  past  times  thought  so  much  con- 
nected with  respect  itself,  were  observed  with  becoming 
attention.  An  escutcheon,  which  has  descended  to  our 
time,  shows  that  the  crown  and  royal  arms  were  placed 
behind  the  bench,  as  the  emblem  of  its  authority;  and 
an  ancient  portrait  of  Justice  Maddox,  painted  by  Hes- 
sellius,  in  1751,  represents  a  venerable  and  benignant- 
looking  man,  costumed  with  care  and  dignity,  in  the 


242  THE  FORUM. 

fashion  of  the  day,  short-clothes,  ruffled  wrist-sleeves, 
and  a  wig — not  in  any  sort  of  a  robe,  however — with 
a  velvet  cap  laid  upon  the  judicial  table,  the  top  of 
which  is  covered  with  a  dark  cloth,  the  sides  being 
hung  with  crimson  velvet ;  himself  seated  in  a  crimson 
velvet-covered  and  cushioned  chair  of  office,  the  cushion 
and  arm-rests  of  which  are  tasselled  with  cords  and 
golden  fringe.  Undoubtedly  it  looks  like  a  seat  \vhich 
its  incumbent,  when  ordering  it,  considered  that  he 
would  have  the  right  to  use  for  the  residue  of  his  life.* 


*  This  picture  was  owned,  and  highly  valued  by  a  descendant  of  Mr. 
Maddox,  the  late  Mr.  Horace  Binney  Wallace,  a  lover  and  judge  of  art. 
It  is  this  picture,  no  doubt,  which  he  refers  to,  in  a  passage  in  those  "Lite- 
rary Criticisms"  published  since  his  death  ;  and  in  which,  discoursing  on 
the  present  modes  of  travel,  he  makes  it  suggestive  of  some  fine  reflec- 
tions upon  the  altered  habits  and  feelings  of  the  time. 

"  It  is  a  characteristic  of  this  age,"  says  the  writer,  "  that  whatever  it 
does,  it  must  do  passionately.  The  man  of  the  present  time  will  not 
journey,  unless  it  be  furiously.  If  that  grave  ancestor  of  mine,  who  is 
now  looking  down  upon  me  from  his  stately  chair,  with  nothing  ruffled 
about  him  but  his  wrists,  could  step  out  alive  from  the  canvas  and  behold 
the  crowded  steamboat  pawing  madly  along  the  water ;  or  the  long  train 
of  cars  shooting  like  a  harnessed  comet  over  the  narrow  road  of  iron,  he 
would  surely  imagine  that  one  side  of  the  world  had  caught  fire,  and  the 
scorched  inhabitants  were  rushing  from  the  flames — or  that  some  still 
more  terrible  catastrophe  was  about  to  happen  at  the  other  end,  and  man- 
kind, with  a  noble  philanthropy,  were  hastening  to  prevent  it — or,  at 
least,  that  every  person  in  the  excited  multitude  was  pressing  forward  on 
business  of  a  vital  importance ;  and  he  would  doubtless  be  surprised  to 
be  told  that  those  herds  of  men  were  hurried  on  by  interests  not  more 
weighty  or  more  elevated  than  those  which  occupied  his  own  bosom,  to 


BEFORE    THE    REVOLUTION.  243 

The  only  portrait  we  have,  near  this  date,  which  re- 
presents the  costume  of  the  bar,  is  a  very  good  one  of 
Andrew  Hamilton,  done,  no  doubt,  in  England ;  he  is 
dressed  in  a  long  flowing  wig,  a  scarlet  coat,  frilled 
bosom,  and  bands,  precisely  like  those  worn  by  some 
denominations  of  the  clergy  in  our  time.  It  is  mani- 
fest that  if  this,  or  any  thing  like  this,  was  the  ordi- 
nary costume  of  the  bar,  it  must  have  generated  an 
observance  of  propriety  in  manner,  which  belongs  to  a 
different  and  a  better  school  than  that  of  the  sack- 
coat  and  "  sqush  hat."  Indeed,  the  beauty  and  bright 
intelligence  of  his  cleanly-shaven  face,  would  present 
a  contrast  with  many  countenances  now  to  be  seen  of 
a  Saturday  morning  in  our  court  rooms,  which  would 
not  argue  much  in  favor  of  the  improved  personal  ap- 
pearance of  the  men  of  this  generation. 

traverse  in  two  hours  the  distance,  which  to  him,  followed  by  his  careful 
servant,  had  often,  for  the  mind  and  meditative  heart,  formed  the  improv- 
ing employment  of  as  many  days  ;  that  one  of  the  most  tremendous 
powers  in  nature  had  been  pressed  into  use  only  that  men  may  save  a 
time  which  they  will  not  employ,  and  shorten  a  distance  which  it  had 
been  pleasant  to  prolong.  An  emblem,  too,  of  the  democratic  spirit 
might  perhaps  be  found  in  the  spectacle  of  men  pressing  and  pressed 
forward  in  masses,  when  before  they  moved  with  a  more  solitary  and 
reserved  independency ;  in  the  submission  of  individual  inclination  and 
humor  to  the  direct  will  of  the  multitude,  of  which  they  became  a  part ; 
the  exchange  of  a  path  and  a  conveyance  of  limited  capacity  for  speed, 
with  freedom  to  tarry, or  wander  at  discretion,  for  a  road  and  a  vehicle  of 
limitless  power,  but  without  the  ability  to  stop  or  deviate  at  all ;  with 
many  other  fancies  of  the  like  nature." 


244  THE  FORUM. 

Though  all  the  judges  seem  to  have  been  engaged 
in  pursuits  not  judicial,  it  is  certain  that  their  judicial 
duties  were  prominent  matters  with  them,  and  received 
faithful  and  steady  attention.  They  seem  to  have  be- 
stowed especial  attention  upon  the  mode  in  which  the 
judicial  records  were  prepared,  entered  and  preserved ; 
a  matter  less  difficult  to  secure  in  that  day,  when  the 
clerk  was  an  officer  of  the  court,  subject  to  its  control, 
and  holding  office  usually  during  his  life,  than  now, 
when  he  is  wholly  independent  of  the  court,  elected 
for  a  "job,"  and  for  the  most  part  equally  careless  and 
ignorant  of  the  duties  he  is  elected  to  perform.  We 
have  looked  at  many  of  the  records  of  the  Orphans' 
Court,  from  1719  till  the  Revolution,  including  the 
series  of  its  minute  books,  and  to  any  one  often  obliged 
to  consult  the  judicial  records  of  Pennsylvania  in  our 
own  time,  it  is  refreshing  to  turn  to  these  far  better 
registers,  the  memorials  of  our  ancestors.  Many  of 
them  are  beautifully  written  in  court-hand ;  all  of  them 
are  careful  and  legible;  and,  when  relating  to  real 
estate,  are  everywhere  so  illustrated  by  diagrams,  as 
to  show  that  both  courts  and  clerk  perfectly  under- 
stood upon  what  they  were  acting.  No  person  can 
examine  them,  and  not  see  that  attention,  a  sense  of 
responsibility,  and  habits  of  order,  must  have  pervaded 
the  administration  of  our  provincial  justice  at  the  time 
of  which  we  speak.  The  writs  of  some  of  the  courts, 
as  appears  by  looking  at  them,  were  engraved,  and  are 


BEFORE    THE    REVOLUTION.  245 

always  sealed  with  care  and  neatness ;  and  when  seal- 
ing-wax is  used — as  it  constantly  is — we  find  it  to  be 
that  known  in  England,  as  "  East  India  wax ;"  a  spe- 
cies of  wax  made  hard  with  rosin,  in  order  to  resist 
the  effects  of  heat  of  climate  and  pressure  from  the 
papers  on  which  it  is  put,  being  packed  tightly  in  bun- 
dles. The  result  is,  that  on  many  of  our  old  court 
papers,  the  impression  of  the  seal  remains  as  "sharp," 
at  the  distance  of  a  century  from  the  time  it  was  put 
there,  as  it  was  the  hour  in  which  it  was  made.* 

The  character  of  the  Justices  of  the  Supreme  Court 
appears  to  have  been  much  the  same  with  that  of  those 
of  the  Common  Pleas,  that  is  to  say,  but  few  of  them 
had  been  much  educated  for  the  bar,  before  they  were 
raised  to  the  bench. 

James  Logan,  who  successively  filled  the  stations  of 
Recorder  of  the  City,  Presiding  Judge  of  the  Common 

*  It  will  give  some  idea  of  the  character  and  capacity  of  the  older  pro- 
thonotaries,  when  we  remember  that  Mr.  Biddle,  who  was  afterwards  Pre- 
sident Judge  of  one  of  our  Common  Pleas — that  of  Philadelphia,  we 
believe — was,  for  many  years,  the  prothonotary  of  that  same  court ;  and 
that  Edward  Shippen,  afterwards  Chief  Justice  of  the  State,  was  for  a 
long  term  of  time  a  prothonotary's  clerk,  and  also  prothonotary  in  the 
Supreme  Court.  There  are  hundreds  of  writs  in  the  handwriting  of 
President  Biddle  and  Chief  Justice  Shippen.  We  see,  too,  very  readily, 
how  such  men,  beginning  with  the  foundations  of  the  law — its  forms — 
were  thoroughly  trained  by  long  and  good  apprenticeship,  before  they 
came  to  the  judicial  administration  of  its  principles ;  and  how,  before 
they  got  upon  the  bench,  they  were  so  perfectly  versed  with  the  practice 
of  the  court  which  they  were  to  administer. 


246  THE  FORUM. 

Pleas,  and  Chief  Justice  of  the  Province,  we  know  was 
fond  of  books ;  a  fine  classical  scholar,  a  good  mathe- 
matician ;  fond,  too,  of  archaeology,  criticism,  theology, 
natural  philosophy,  and  apparently  of  anatomy,  also. 
Indeed,  his  correspondence,  much  of  it  in  Latin,  shows, 
it  is  said,*  that  there  was  scarcely  a  department  of 
learning  in  which  he  was  not  interested.  He  had  been 
a  merchant,  and  though  a  "  Friend,"  he  also  exercised 
the  military  office.  And  as  we  know  that  he  held,  at 
different  times,  the  important  posts  of  Provincial  Sec- 
retary, Commissioner  of  Property,  Receiver-General, 
President  of  the  Council,  (in  which  last  office  the  go- 
vernment of  the  province  for  two  years  fell  upon  him,) 
and  was  withal  much  devoted  to  the  agriculture  and 
the  improvement  of  Stenton,  his  beautiful  farm  near 
Germantown;  we  may  readily  believe  that,  however 
imposing  he  may  have  been  in  his  judicial  presidencies, 
his  legal  acquirements  could  not  have  been  of  a  pro- 
found or  technical  kind,  nor  his  strictly  judicial  duties 
very  engrossing.  Of  the  labors  of  "Andrew  Robeson, 
Esq.,"  Chief  Justice  in  1693,  as  ancient  records  tell  us, 
we  have  very  few  records,  and  of  Jeremiah  Langhorne, 
his  successor  at  a  later  day,  scarcely  any  records  what- 
ever. Except  that  we  know  they  both  died,  we  should 
scarcely  know  that  either  of  them  lived.  Among  the 
hundreds  of  lawyers  who  now  belong  to  the  bar  of 

*  See  Sparks'  edition  of  Franklin's  works,  vol.  VII.,  p.  24. 


BEFORE    THE    REVOLUTION.  247 

Pennsylvania,  I  suppose  that  not  five  of  them  ever  so 
much  as  even  heard  the  names  of  these  once  well  known 
Chief  Justices  of  their  State. 

John  Kinsey,  prior  to  being  Chief  Justice,  had  been 
in  extensive  practice,  and  was  undoubtedly  an  educated 
lawyer,  as  well  as  a  man  of  fine  natural  parts,  and  the 
same  is  true,  of  the  education  and  practice  of  Chief 
Justice  Chew.     But  William  Allen,  whom  we  find  on 
the  bench  as  Chief  Justice,  in  1754,  when  our  first 
printed  Reports — those  of  Mr.  Dallas — begin,  was  a 
merchant,  in  partnership  with  Mr.  Turner ;  and  it  may 
interest  the  curious  to  know,  that  his  counting-house 
was  in  his  dwelling,  in  Water  street,  below  Market ;  a 
fashionable  quarter  of  the  town  in  his  day.     He  was 
a  man  distinguished  for  his  social  and  fashionable  emi- 
nence, as  his  family  continued,  I  believe,  to  be,  both 
in  its  men  and  women,  before  and  after  the  Revolution. 
The  wife  of  Chief  Justice  Allen,  was  Margaret,  a 
daughter   of  Andrew  Hamilton.     Mrs.  Greenleaf,  a 
woman  of  splendid  beauty,  during  the  time  of  Wash- 
ington, was  his  grand-daughter.     Mrs.  Tilghman,  the 
wife  of  the  Chief  Justice  of  that  name,  was  another. 
The  late  very  accomplished  Andrew  Allen,  for  some 
time  British  consul  at  Boston,  afterwards  a  resident  of 
Burlington,  N.  J.,  and  finally  of  Clifton,  in  England, 
where  he  died  lately,  was  also  his  descendant.     But 
there  is  no  doubt  that  the  Chief  Justice  practised  com- 
merce, at  least  ex  amateur,  or  as  an  inactive  partner, 


248  THK  FORUM. 

during  his  judicial  career;  and  from  it,  much  more 
likely  than  from  the  liberal  professions,  or  from  any 
emoluments  of  high  judicial  station,  acquired  the 
wealth  which  enabled  him  to  maintain  a  liberal  city 
house  and  style  of  life,  and  a  summer  home  at  Long 
Branch;  at  which  spot,  known  even  prior  to  our  Revo- 
lution as  a  watering-place,  he  had  nearly  a  hundred 
years  ago,  a  second  residence  for  summer.* 

We  are  not  without  a  pretty  good  portrait  of  Chief 
Justice  Allen,  interesting  in  the  history  of  the  law,  as 
one  of  the  few  pictorial  records  of  our  early  Chief  Jus- 
tices, and  interesting  also  in  the  history  of  American 
art,  as  one  of  the  early  productions  of  our  countryman, 
Benjamin  West ;  a  painter,  whose  genius  has  of  late 
times  been  as  much  undervalued  in  England,  as  by 
a  small  party  round  the  court  of  George  HI.,  it  was 
overvalued  about  fifty  years  ago ;  it  is  a  three-quarters 

*  Allen,  as  we  state  in  the  text,  was  a  liberally  disposed  man,  and 
distinguished  mention  is  made  in  the  papers  of  that  day,  of  the  great 
dinner  which  he  gave  in  September,  1736,  on  his  retirement  from  the 
mayoralty.  u  On  Thursday  last,"  says  The  Pennsylvania  Gazette  of  the 
23rd  of  that  month,  "  William  Allen,  Esquire,  Mayor  of  this  city,  made 
a  feast  for  his  citizens  at  the  State-house,  to  which  all  the  strangers  in 
town,  of  note,  were  also  invited.  Those  who  are  judges  of  such  things 
say  that,  considering  the  delicacy  of  the  viands,  the  variety  and  excel- 
lence of  the  wines,  the  great  number  of  guests,  and  yet,  the  easiness  and 
order  with  which  the  whole  was  conducted,  it  was  the  most  grand  and 
the  most  elegant  entertainment  that  has  been  made  in  these  parts  of 
America." 


BEFORE    THE    REVOLUTION.  249 

length,  and  taken  standing ;  he  has  a  curled  wig  and 
ruffled  sleeves,  but  is  otherwise  dressed  as  plainly  as 
possible.  The  costume  for  the  whole  dress,  is  appa- 
rently of  one  color — a  not  very  good  shade  of  brown; 
the  colors  may  have  faded.  The  face  is  round,  with 
rather  straight  features,  and  is  distinguished  by  Ion 
hommie  and  good  sense,  rather  than  by  intensity  or 
acuteness  of  intellectual  action,  or  by  anything  ascetic. 
He  looks  like  a  man  who  had  the  sense  to  use  the  good 
things  of  life  without  abusing  them;  and  his  whole 
appearance  would  render  not  improbable  the  story 
recorded  of  him,  that  when,  on  the  establishment  of 
the  first  theatre  in  Philadelphia,  about  a  century  ago, 
a  deputation  of  gentlemen  from  "Meeting"  waited  on 
him,  as  Chief  Justice  of  the  province,  to  put  the  play- 
ers out  of  it,  he  told  them  that  he  must  decline  such 
action,  as  he  had  read  as  good  moral  instruction  in 
plays,  as  he  had  ever  heard  from  any  of  their  ser- 
mons. This  portrait  is  in  the  possession  of  a  gen- 
tleman of  Philadelphia,  who  is  connected  by  marriage 
with  the  descendants  of  the  Chief  Justice. 

Of  one  of  the  puisne  judges  in  1754,  under  Allen's 
presidency,  William  Coleman,  we  have  a  terse,  but 
beautiful  characterization,  by  Dr.  Franklin,  who,  with 
him,  was  a  member  of  the  well-known  "  Junto,"  esta- 
blished at  an  early  date  in  Philadelphia.  "  William 
Coleman,"  says  Franklin,  writing  of  the  year  1728, 
"  then  a  merchant's  clerk,  about  my  age,  had  the  cool- 

VOL.  i. — 17 


250  THE  FORUM. 

est,  clearest  head,  the  best  heart,  and  exactest  morals, 
of  almost  any  man  I  ever  met  with ;  he  afterwards 
became  a  merchant  of  great  note,  and  one  of  our  pro- 
vincial judges.  Our  friendship  continued  without  in- 
terruption to  his  death — upwards  of  forty  years ;  and 
the  club  continued  almost  as  long,  and  was  the  best 
school  of  philosophy,  morality,  and  politics,  that  then 
existed  in  the  province;"  Godfrey,  the  inventor  of 
the  quadrant,  Joseph  Brientnal,  Scull,  George  Webb, 
and  others,  were  its  members. 

It  is  interesting  to  note  how  often  the  names  of  our 
early  provincial  judges  are  connected  with  our  city 
institutions  of  public  usefulness ;  whether  of  charity, 
religion,  or  letters.  Logan  was  the  founder  of  one  of 
our  libraries — the  Loganian ;  Coleman  was  an  active 
member  and  first  treasurer  of  another — the  Franklin 
Library  Company  of  Philadelphia.  Allen,  Coleman, 
Lawrence,  Maddox,  and  Franklin,  were  founders  and 
original  trustees  of  the  University  of  Pennsylvania, 
and  among  the  persons  in  1749,  who  "subscribed 
among  themselves  a  sum  exceeding  £2000,  to  esta- 
blish it;"  "humbly  hoping,"  says  their  declaration, 
"  through  the  favor  of  Almighty  God,  and  the  bounty 
and  patronage  of  well  disposed  persons,  that  it  might 
be  of  great  and  lasting  benefit  to  the  present  and 
future  rising  generations."  Coleman  was  the  first 
treasurer  of  the  college,  and  Franklin  and  Maddox 
were  both  active  persons,  as  well  as  contributors 


BEFORE    THE    REVOLUTION.  251 

to  that  now  venerable  institution  of  humanity — the 
Pennsylvania  Hospital. 

Of  Lawrence  Growden,  Caleb  Cowpland,  Alexander 
Stedman,  and  John  Lawrence,  who,  with  John  Morton, 
were  also  judges  of  this  court  between  1754  and  the 
Revolution,  our  knowledge  does  not  enable  us  much 
to  speak;  the  impression  is,  that  both  Growden  and 
Lawrence  were  lawyers,  but  we  think  not  Stedman  or 
Cowpland.  The  Growdens  came  to  the  province  at  a 
very  early  date,  and  for  nearly  a  century  seem  to  have 
been  connected  in  different  ways  with  its  courts  and 
bar ;  it  is  probable  they  were  people  of  some  conside- 
ration at  home,  for  they  gave  to  their  place  near  Phila- 
delphia— in  Bucks  county,  perhaps — the  name  of  "  Tre- 
vose,"  which  was  also  the  name  of  the  seat  or  locality 
at  which  they  had  been  long  established  in  England, 
when  they  left  it  to  come  here.  In  their  origin,  as 
known  in  Pennsylvania,  they  were  probably  "  Friends," 
though  not  all  of  them  in  harmony  with  the  civil  au- 
thority of  that  sect.  As  we  shall  see,  further  on, 
Joseph  Growden,  at  a  very  early  date  of  our  history, 
was  a  man  of  some  legal  and  literary  distinction,  and 
involved  both  himself  and  others  in  conflict  with  the 
provincial  government — then  very  badly  administered 
by  one  of  the  governors — for  presuming  to  publish 
comments,  by  way  of  interpretation,  upon  the  char- 
acter of  Mr.  Penn.  The  name  of  Growden  is  not 
known  at  the  bar  in  this  day;  but  our  impression 


252  THE  FORUM. 

is,  that  to  that  family,  in  its  female  lines,  the  legal 
name  of  Rawle,  long  and  still  at  our  bar,  belongs  by 
descent.  Of  Caleb  Cowpland,  we  cannot  find  a  single 
trace,  except  his  name.  Alexander  Stedman  has  left  us 
a  few  vestiges,  which,  for  want  of  better,  we  must  re- 
trace. By  comparing  the  signature  on  the  sheet  of 
autographs  in  this  work,  with  the  autographs  of  the 
subscribers  for  the  "First  City  Dancing  Assembly," 
recently  fac-similed  in  this  city,  we  find  that  in  1749, 
our  venerable  judge,  then  a  youth,  was  a  gentleman  of 
taste  and  fashion ;  he  was  a  member  of  this  "  City 
Assembly;"  "an  Association,"  says  the  annalist,  Mr. 
Watson,  "  which,  like  another  Almack's,  embodied  the 
exclusives  of  the  day,  when  the  elite  were  far  more 
marked  by  metes  and  bounds  of  separation  than  now." 
"  It  professed,"  says  this  gentleman,  "  to  enroll  and 
retain  in  its  union,  only  Hhose  who  had  ancestral  bear- 
ings and  associations.' "  Mr.  Stedman,  we  are  happy 
to  add,  does  not  appear  to  have  allowed  the  dissipa- 
tions of  the  time  to  have  carried  him  too  far  away ;  and 
if  we  want  assurance  that  by  the  time  he  had  reached 
judicial  honors,  he  had  attained  also  to  becoming  gra- 
vity, wfe  may  find  it  abundantly  in  the  fact  told  us  in 
Dr.  Dorr's  History  of  Christ  Church.  He  exercised 
for  several  years  (from  1759  to  1764,)  the  office  of 
fiscal  warden  of  that  corporation,  an  office  of  respon- 
sibility and  of  still  more  honor. 

It  is  said  that  John  Morton — afterwards  known  as 


BEFORE    THE    REVOLUTION.  253 

a  signer  of  the  Declaration  of  Independence — sat,  for 
a  short  time,  under  the  province,  as  President  of  the 
Common  Pleas,  and  an  associate  of  the  Supreme  Court; 
so  little  is  known  of  his  history,  however,  that  it  is 
difficult  to  fix  the  dates  with  exactness ;  though,  as  he  , 
died  in  April,  1777,  and  was  in  Congress  in  July, 
1776,  it  is  probable  that  his  judicial  tenures  were  as 
we  have  supposed.  We  know  that  his  early  education 
and  associations,  though  plain,  were  entirely  respect- 
able, and  his  moral  character  above  all  stain ;  and 
every  act  of  his  public  life,  of  which  we  have  any 
knowledge,  shows  that  his  intellectual  parts  were 
marked  by  that  "  finest,  rarest,  last  betrayed,"  of  men- 
tal faculties,  good  judgment.  "  To  say  of  any  man," 
we  are  told  by  an  accomplished  writer,  a  member  of 
our  bar,  "  that  he  excels  by  that  attribute,  is  to  award, 
perhaps,  the  highest  praise  that  could  be  bestowed. 
It  is  above  invention;  it  is  beyond  eloquence;  it  is 
more  than  logic.  In  every  employment  and  every 
condition  of  life,  public  and  private,  deliberate  and 
executive — and  most  of  all,  in  the  judicial — the  ascen- 
dency of  judgment  over  talent,  wit,  passion,  imagina- 
tion, learning,  is  evinced  at  once  by  the  rarity  of  the 
endowment,  and  by  the  superiority  which  it  is  certain 
to  confer  on  its  possessor."  Such  is  the  praise  which 
belongs — in  his  judicial  administration — to  Morton. 
Of  Chief  Justice  Chew — the  last  Chief  Justice  of  the 
Crown — we  need  not  speak  here,  as  he  belongs  rather 


254  THE  FORUM. 

to  the  history  of  the  Commonwealth,  in  which  he  held 
the  distinguished  post  of  President  of  the  High  Court 
of  Errors  and  Appeals.  Let  us  conclude,  then,  these 
notices,  with  the  name  of  one,  of  whose  integrity  and 
virtues  the  memory  is  yet  fresh,  and  who,  we  can  well 
believe,  must  have  done  the  Provincial  Bench  not  less 
honor  than  those  who  did  it  most.  Of  Mr.  Thomas 
Willing,  an  associate  in  1767,  the  prolongation  of  whose 
life  to  a  very  advanced  term,  made  his  venerable  per- 
son familiar  to  many  of  this  generation,  we  need  say 
but  little ;  he  had  been  partially  educated  to  the  law 
in  England,  in  the  Temple,  in  which  place,  at  No.  3,  in 
the  King's-walk,  he  is  said  to  have  had  an  uncle,  named 
also,  Thomas  Willing,  residing.  But  it  is  as  a  distin- 
guished citizen  and  merchant,  that  his  memory  comes 
chiefly  commended  to  this  generation;  his  character 
in  both  capacities  has  been  sketched  by  a  master-hand 
at  the  bar,  in  our  own  time. 

"  This  excellent  man,"  says  a  lapidary  inscription,*  "in  all  the 
relations  of  private  life,  and  in  various  stations  of  high  public  trust, 
deserved  and  acquired  the  devoted  affection  of  his  family  and  friends, 
and  the  universal  respect  of  his  fellow-citizens.  From  1754  to  1807 
he  successively  held  the  offices  of  secretary  to  the  Congress  of  Dele- 
gates at  Albany,  mayor  of  the  city  of  Philadelphia,  her  represen- 
tative in  the  General  Assembly,  President  of  the  Provincial  Congress, 
delegate  to  the  Congress  of  the  Confederation,  President  of  the  first 

*  On  a  monument  in  Christ  Church  burial  ground. 


BEFORE    THE    REVOLUTION.  255 

chartered  bank  in  America,  and  President  of  the  first  bank  of  the 
United  States.  With  these  public  duties  he  united  the  business  of 
an  active,  enterprising,  and  successful  merchant,  in  which  pursuit, 
for  sixty  years,  his  life  was  rich  in  examples  of  the  influence  of  pro- 
bity, fidelity,  and  perseverance  upon  the  stability  of  commercial 
establishments,  and  upon  that  which  was  his  distinguished  reward 
upon  earth,  public  consideration  and  esteem.  His  profound  adora- 
tion of  the  Great  Supreme,  and  his  deep  sense  of  dependence  on  his 
mercy,  in  life  and  in  death,  gave  him,  at  the  close  of  his  protracted 
years,  the  humble  hope  of  a  superior  one  in  Heaven." 

Such,  in  a  general  way,  were  the  men,  so  far  as 
casual  reading  recalls  them,  who  made  the  judiciary 
of  the  old  province;  a  judiciary  not  likely  to  be 
surpassed  in  weight  of  private  character  or  in  degree  of 
public  estimation,  by  any  which,  in  the  times  that  we 
live  in,  we  are  probably  again  to  see.  Long  may  their 
virtues  and  character  remain  to  receive  our  homage ! 

This  sketch  of  our  early  judges  will  show,  perhaps, 
in  how  much  higher  a  degree,  moral  and  prudential 
qualities  enter  into  the  true  composition  of  a  dignified 
bench  than  any  others ;  and  that  good  principles,  good 
habits,  and  good  manners  belong  as  much  and  as  inse- 
parably to  judicial  greatness  and  judicial  influence,  as 
legal  learning  or  legal  practice. 

If  the  bench  of  the  republic  in  our  own  day,  possesses 
less  weight  than  did  the  bench  of  the  province ;  if  the 
title  of  a  great  magistrate  is  no  longer  a  revered  or 
respected  one ;  and  if  the  judge  is  not  held  by  us  as 
he  was  by  our  fathers — everywhere  in  honor — we 


256  THK  FORUM. 

must  search  for  the  cause  in  the  altered  modes  of  ap- 
pointment, and  the  altered — the  "  available" — requisi- 
tions which  the  good  people  of  our  time  have  declared 
that  they  deem  the  best  ones. 

In  looking  at  the  character  of  some  of  the  persons 
who  exercised  the  judicial  office  in  the  days  of  the 
province,  one  cannot  help  observing  how  much  higher, 
too,  in  that  day,  than  in  this,  must  have  been  the 
character  of  "  the  merchant."  Nearly  all  the  justices, 
both  of  the  Common  Pleas  and  the  Supreme  Court — 
Franklin  excepted — were  merchants ;  yet  they  were 
men  not  only  of  much  intelligence  and  education,  but 
men  also  of  a  very  high  character  as  gentlemen; 
having  all  the  atmosphere  and  reserve  of  gentlemen, 
and  bearing  those  characteristics  of  independency  and 
retirement,  which  Mr.  Burke  admired  in  the  judicial 
character,  and  which,  while  fit  to  mark  especially  that 
character,  belong  to  the  best  expressions  of  society 
everywhere;  but  belong  not  at  all  to  the  driving, 
eager,  gambling  class,  which,  too  often  in  this  day, 
assumes  to  represent  "the  merchant,"  whose  honest 
and  honourable  commerce  wras  the  commerce  of  our 
fathers. 

We  ought  not  to  conclude,  perhaps,  without  a  word 
about  the  Admiralty  Courts  which,  formerly  of  the 
province,  have,  since  the  adoption  of  the  federal  con- 
stitution, passed  to  the  Union. 

The  court  of  vice-admiralty,  during  the  province, 


BEFORE    THE    REVOLUTION.  257 

was  one  whose  jurisdiction  has  been  a  subject  of  con- 
test at  the  bar  ever  since  our  federal  constitution  was 
adopted ;  and,  as  it  remains  one  of  serious  difference 
of  opinion  upon  the  bench  of  the  highest  tribunal  of 
the  country  still,  we  shall  not  attempt  to  discuss  it. 
Its  ordinary  business,  we  would  think,  could  not  have 
been  great,  but  it  had  occasionally  cases  of  large 
amount.  Dr.  Franklin  tells  us  that  Andrew  Hamil- 
ton, who  had  taken  passage  with  him  in  1724,  on  a 
vessel  for  England,  had  gone  down  the  Delaware  as 
far  as  Newcastle,  but  was  "recalled  by  a  great  fee 
to  plead  for  a  seized  ship."  The  case  must  have 
been  one  of  magnitude,  which  could  offer  a  fee  suffi- 
ciently large  to  bring  back  Mr.  Hamilton  after  he  had 
set  out  on  his  voyage.  We  have  also  a  long  and 
carefully  written  opinion  by  John  Kinsey,  in  Septem- 
ber, 1745,  on  a  question  of  salvage,  which  indicates  so 
good  a  degree  of  familiarity  with  that  class  of  ques- 
tions as  to  prove  that  they  could  not  have  been  unfre- 
quent  subjects  of  his  examination. 

The  judges,  we  suppose,  were  appointed  immediately 
from  the  crown.  We  may  infer  this,  both  from  the 
nature  of  the  jurisdiction,  and  from  the  fact  that  even 
in  early  times  they  appear  to  have  belonged  to  the 
church  of  England ;  for  the  only  two  whom  we  know  to 
have  been  judges  were  wardens  of  Christ  Church  in 
this  city.  One  of  the  earliest  of  these  was  William 
Assheton,  who  died  in  September,  1 723,  at  the  early 


258  THE  FORUM. 

age  of  thirty-three,  being  at  that  time  the  rector's 
warden.  Those  persons  who  were  formerly  in  the 
habit  of  attending  the  venerable  church  of  which  we 
speak,  and  whose  records,  as  given  to  us  by  Dr.  Dorr, 
are  among  the  most  valuable  contributions  yet  made  to 
the  history  of  our  early  city  families,  will  perhaps 
recall  a  stone,  (now  covered  by  the  floor  put  there  in 
1836,)  which  was  in  the  aisle  in  front  of  the  chancel 
rails,  not  far  from  the  north  wall,  the  inscription 
partially  obliterated :  thus — 

"  M.  S.  Famse 

ASSHETON  *  *  *  *  iensis 
de  Salford  juxta  Manchester 
*  *  *  *  Lancastriensis 
St6phanus  Watts  Francisca 
Rudolph!  Susanna  Assheton 
Anno  Salutis  1768." 

To  the  older  members  of  this  family  which  came 
early  to  the  province,  and  was  one  of  the  best  educated 
in  it,  and  in  many  of  its  members  connected  with  our 
courts,  where  we  always  find  their  proceedings  charac- 
terized by  education,  skill,  and  sense,  we  suppose  Wil- 
liam Assheton,  the  judge,  to  have  belonged.  We  find 
him,  in  1722,  in  the  absence  of  the  rector  from  indis- 
position, invited  by  the  vestrymen  to  "  read  prayers 
and  sermons"  to  that  respectable  congregation.  His 
sister  was  married,  we  think,  to  one  of  the  early  rectors 


BEFORE    THE    REVOLUTION.  259 

of  the  church,  Mr.  Archibald  Cummings ;  a  name  very 
familiar  to  persons  who,  like  most  lawyers  in  much 
practice  of  passing  upon  titles  of  real  estate  in  Phila- 
delphia, have  had  constant  occasion  to  trace  and  to 
note  the  histories  of  our  earlier  families ;  for,  in  a 
space  of  about  fifteen  years,  we  have  Mr.  Cummings' 
registries  of  no  less  than  "  851  marriages,  1728  bap- 
tisms, and  1601  burials."  In  an  obituary  notice  which 
we  have  seen  of  Judge  Assheton,  he  is  styled  "  William 
Assheton,  Esquire,  Counsellor-at-law  and  Judge  of  His 
Majesty's  Court  of  Vice-Admiralty  for  this  Province, 
and  one  of  the  Governor's  Council."  He  is  stated  to 
have  been  "  a  man  of  ability  and  probity  in  his  pro- 
fession;" and  it  is  added,  that  "his  death  is  much 
lamented  as  well  by  the  public  as  by  his  private  friends 
and  acquaintance  (they  being  very  sensible  of  their 
loss.)"  The  name — once  so  much  in  place  and  honour 
- — has  become,  we  believe,  entirely  extinct  in  any  kind 
of  professional  life  in  this  city;  nor  do  we  know  at  all 
by  whom  it  is  represented.  We  take  it  to  be  probable, 
that  Charles  Read  succeeded  Judge  Assheton  in  the 
vice-admiralty.  He  may  have  been  in  some  way 
related  to  him,  for  he  was  the  guardian  of  Assheton's 
children.  Prior  to  his  appointment  to  the  bench  he 
had  been  several  times  elected  mayor  and  sheriff  of  the 
city,  and  one  of  the  legislative  representatives  for  the 
county.  It  gives  us  an  idea  of  the  judicial  character 
of  that  day,  which  we  hardly  entertain  even  in  this, 


260  THE    FORUM. 

• 

to  find  that  Mr.  Read,  at  the  time  of  his  death,  held 
not  only  the  office  of  judge  of  the  vice-admiralty,  but 
was  also  one  of  the  provincial  council,  one  of  the  com- 
missioners of  the  law  office;  and  held  also  several 
other  posts  of  honor  and  profit  in  the  province,  be- 
sides being  collector  of  the  port  of  Burlington,  in  New 
Jersey.  A  tribute  to  his  character,  of  which  we  have  a 
copy,  declares  of  him  that  he  "  always  discharged  his 
respective  trusts  to  the  general  applause ;"  and  that 
he  "left  behind  him  the  character  of  a  sincere  Chris- 
tian, tender  husband,  indulgent  father,  kind  master, 
faithful  friend,  good  neighbour,  and  agreeable  com- 
panion." He  died  in  1736,  we  think,  in  the  51st  year 
of  his  age.  He,  too,  like  Judge  Assheton,  was  a 
warden  of  Christ  Church,  though  we  do  not  perceive 
that,  like  his  predecessor,  he  was  ever  invited  to  even 
such  discharge  of  the  sacred  functions  as  is  allowed  to 
lay  readers. 

We  believe  that,  at  a  later  day,  Thomas  Hopkinson, 
father  of  Francis,  the  first  district  judge  for  this  dis- 
trict under  the  constitution,  was  also  a  judge  of  the 
admiralty.  We  know  that  he  was  long  the  clerk  or 
prothonotary  of  one  of  the  provincial  courts ;  and  if 
his  judicial  duties  were  performed  as  intelligently,  and 
as  regularly,  and  as  beautifully  as  his  clerical  ones  (of 
which  many  evidences  may  be  seen,)  undoubtedly  were, 
he  must  have  discharged  them,  if  not  like  his  prede- 
cessor, Mr.  Read,  is  said  to  have  done — to  "  general 


BEFORE    THE    REVOLUTION.  261 

applause' — at  least  to  the  satisfaction  of  all  the  counsel 
of  his  court. 

We  have  but  few  printed  reports  of  the  early  admi- 
ralty. Mr.  Penn,  while  in  this  country,  considered 
himself  a  lord  admiral,  as  his  father,  Sir  William,  had 
been  before  him.  But  we  have  only  one  of  his  cases 
and  decisions.  This  is  reported  in  the  Provincial 
Minutes,*  and  as  a  specimen  of  that  lucid  style  of  re- 
porting, and  especially  of  stating  the  case,  which  has 
since  been  very  well  known  to  the  readers  of  our 
Supreme  Court  reports,  both  State  and  Federal, 
— as  well  as  for  Mr.  Penn's  excellent  decision  on  the 
difficulty — deserves  an  extract  here.  We  quote  it  lit- 
erally : — 

"  At  a  CouncIU  held  at  Philadelphia  ye  8th  of  y6  7th  Mo.  1683. 
Present :  Wm.  Penn,  Propr  and  Gov,  [and  the  Council.] 

"  Phillip  England  made  his  Complaint  against  James  Kilner,  who 
denyeth  all  alledged  against  him,  only  y*  Kicking  of  the  maid,  and 
that  was  for  Spilling  a  Chamber  Pott  upon  y6  Deck ;  otherways  he 
was  Very  Kind  to  them.  George  Green  Saith  that  Phillip  England 
went  to  Said  Kilner  to  the  overplus  Water,  also  Beer,  which  was 
his  own,  and  was  denied  it.  Tho.  Brinket  Saith  that  James  Kilner 
said  he  must  take  care  of  their  Water,  having  but  a  Little  Left,  but 
never  denyed  them  water  at  any  Time.  Also  ye  Ship  rouled  some- 
times when  ye  Caske  was  almost  out,  and  soe  made  it  Like  pudle. 
He  further  saith  y6  Seamen  drunk  more  of  ye  Passingers  beer  than 
they  themselves,  and  chainged  5  Barrells  of  y6  Passingers  beere  and 
then  the  had  not  pformed  halfe  their  Voige,  and  the  Ship  beer 
*  Vol.  I.,  p.  25. 


262  THE  FORUM. 

being  spent,  drank  wholy  of  the  Passing" ;  he  also  saith  ye  Seamen 
drunk  some  times  one  Cann,  some  times  two  a  day,  more  then  y* 
Passingers  that  owed  the  drinke.  The  Master  Saith  the  Passingers 
Left  the  Ordering  of  the  Drink  to  him,  but  they  deny  it. 

The  Gov*  gave  the  Master  a  Repremand  and  advised  him  to  goe 
w"1  the  Passingers  and  make  up  the  Buisness,  w*h  accordingly  he 
did." 

We  have  next  an  opinion  (not  in  these  minutes)  of 
Mr.  Justice  Assheton,  given  in  the  spring  of  1723, 
"when  he  gave  judgment  against  two  persons  who 
were  tried  before  him  for  contempts  against  the  king." 
In  that  day  of  the  province,  therefore,  the  punish- 
ment of  "contempts"  seems  to  have  been  a  special 
department  of  the  admiralty  jurisdiction.  Two  per- 
sons, brought  before  the  judge,  adherents  of  the  cause 
of  Charles  Stuart,  and  Scotsmen,  most  probably,  had 
ventured  to  call  George  Guelph  "  the  Pretender ;"  and 
one  of  them,  it  appeared,  had  not  only  spoken  ill  of 
the  king,  but  had  been  guilty  of  that  which  might 
naturally  impress  the  court  as  a  still  greater  offence — 
disobeying  and  publicly  affronting  magistrates.  He 
denied  that  he  was  bound  to  obey  either  the  House  of 
Hanover  or  the  House  of  Hanover's  judges.  One  of  the 
men  had  confessed  his  guilt,  and  submitted ;  but  the 
other  was  contumacious,  and  it  had  to  be  proved  upon 
him.  Judge  Assheton  goes  into  the  whole  general  sub- 
ject of  contempts,  explaining  exactly  what  they  are : 
"in  order  that  people  may  know  when  they  incur  guilt, 


BEFORE    THE    REVOLUTION.  263 

and  though  they  are  fully  predetermined  in  their  own 
opinions,  against  clear  conviction,  they  may  at  least 
be  so  discreet  as  to  reform  their  manners.  He  does 
not  tell  either  the  prisoners  or  us  how,  exactly,  con- 
tempts against  the  king  fell  within  the  admiralty  juris- 
diction. He  may  perhaps  have  felt  secure  in  the  fact 
that  the  subject  of  contempts  is  not  one  for  revision  by 
any  one  except  the  courts  which  commit,  and  have 
usurped  a  power.  If  this  was  so,  have  we  not  cause  to 
feel  grateful  for  the  advance  of  jurisprudence  in  this  day  ? 
After  telling  them  what  is  contempt  against  the  king, 
he  informs  them,  "  that  it  is  greatly  impudent  and  pre- 
sumptuous, for  private  persons  to  intermeddle  with 
matters  of  so  high  a  nature ;  and  it  will  be  impossible 
to  preserve  the  peace,  unless  subjects  will  quietly  sub- 
mit themselves  to  those  whom  Providence  has  placed 
over  them."  He  then  examines  the  matter  on  "  the 
Hebrew  law,"  the  law  of  "  the  New  Testament,"  and 
asks,  "  if  the  maiming  of  a  Roman  Emperor,  was  pun- 
ished with  death,  what  severity  can  be  too  harsh  for 
those  who  thus  despise  dominions,  and  speak  evil  of 
dignities  ?  who  curse,  asperse,  and  deny  their  supreme, 
true,  and  lawful,  and  undoubted  sovereign."  He  gives 
some  principles  for  the  judicial  action,  not  exceeded  in 
strength  of  tone  by  any  we  have  had  since,  and  which 
we  should  almost  think,  had  served  as  precedent  pecu- 
liar to  the  admiralty.  "  Though  it  be,"  he  says,  "  the 
duty  of  a  magistrate,  and  an  excellent  qualification  in 


264  THE  FORU.M. 

him,  to  temper  justice  with  prudence,  and  severity 
with  gentleness  and  forbearance,  yet  it  must  be  con- 
fessed, much  more  for  the  common  advantage,  to  have 
such  magistrates  as  incline  to  the  excess  of  sharpness 
and  rigor,  than  those  who  are /disposed  to  mildness, 
and  easiness,  and  compassion.  .  .  .  The  strict  and 
harsh  magistrate  is  the  better  restraint,  the  stronger 
curb ;  the  mild  and  merciful  one  exposes  the  laws  to 
contempt,  makes  magistracy  cheap,  and  lessens  the 
prince,  who  makes  both  the  law  and  the  magistrate." 
After  giving  a  somewhat  milder  sentence  to  the  pri- 
soner, who  had  confessed  his  guilt  and  submitted  to 
sentence,  namely — that  he  "  shall  stand  under  this 
court-house*  for  the  space  of  one  hour,  on  two  market- 
days,  with  one  paper  fixed  on  his  breast,  and  another 
on  his  back,  with  these  words  writ  upon  them,  in  fair 
characters  :  (I  stand  here  for  speaking  contemptuously 
against  my  sovereign  Lord,  KING  GEORGE  ;' — pay  20 
marks,  sterling,  and  the  charges  of  prosecution,"  the 
judge  goes  to  the  other  one,  who  had  been  contuma- 
cious, and  "  heartily  wishing  that  the  sentence  might 
have  a  good  effect  upon  him,"  pronounces  his  doom 
thus  :  "  I  do  adjudicate  and  decree,  that  you  shall 
stand  in  the  pillory,  in  this  market-place,  fbr  the  space 
of  two  hours,  on  two  market-days ;  that  afterwards, 

*  From  this,  it  would  appear  that  the  old  Admiralty  Court  must  have 
been  over  the  pillory,  which  was  in  the  market-house  at  Third  street,  as 
the  other  courts  were  over  the  market-house,  at  Second  street. 


BEFORE    THE    REVOLUTION.  265 

on  the  said  days,  you  shall  be  tied  to  the  tail  of  a  cart, 
and  be  drawn  round  two  of  this  city  squares,  and  then 
you  shall  be  whipped  on  your  bare  back,  with  forty-one 
lashes,  and  be  imprisoned  till  you  have  paid  the  charges 
of  prosecution." 

It  is  only  when  we  read  such  judicial  sentiments, 
and  such  judicial  sentences — common  sentences  of  the 
time — that  we,  in  this  day,  can  estimate  the  value  of 
such  efforts  as  those  of  William  Bradford,  Esquire, 
which,  in  1794,  led  to  the  amelioration  of  our  penal 
code.  We  read  the  small  tract  which  bears  his  name, 
without  being  deeply  impressed  with  the  author's 
great  superiority  to  other  able  men ;  and  without  at 
first  being  perfectly  able  to  understand,  how  it  is  that 
this  essay  has  given  to  him  a  reputation  over  Europe. 
It  was  in  the  thought  that  his  merit  consisted,  and 
that  thought  it  was,  which  has  since  "  conquered  the 
world." 

It  was  our  design  in  this  chapter  to  give  some  spe- 
cial account  of  the  Provincial  Bar.  The  latest,  and 
ablest,  and  best  portion,  however — the  part  which 
includes  the  names  of  McKean,  Chew,  Shippen,  Reed, 
Ingersoll,  Lewis,  Rawle,  and  Tilghman,  belongs  to  the 
Commonwealth,  and  we  shall  speak  of  them  under  that 
title.  Of  the  earlier  ones,  excepting  Francis,  Dickin- 
son, George  Ross,  and  Andrew  Allen,  most  of  them 
fill  a  larger  space  upon  the  Provincial  Bench,  of  which, 
in  a  general  way,  we  have  given  our  impressions.  Of 

VOL.  i. — 18 


266  THE    FORUM. 

some  of  these  gentlemen  just  named,  the  elder  Mr. 
Rawle,  has  given  us  such  recollections  as  he  had.  His 
beautiful  sketch  is  in  print,  and  we  need  not  attempt 
its  improvement.  We  know  that  they  were  all  well 
educated  and  accomplished  lawyers  and  gentlemen, 
trained  in  the  English  school  both  of  law  and  breed- 
ing; and  that  Mr.  Francis,  who  was  attorney-general, 
appointed  in  1741,  and  Mr.  Galloway,  were  both  in 
extensive  practice.  But  unhappily  Galloway,  unlike 
Francis,  Hamilton,  Dickinson,  and  other  patriots  of 
that  period,  deserted  his  country  in  her  extremest  need 
— in  the  darkest  hour  of  the  Revolutionary  struggle, 
and  therefore  his  name  should  be  written  only  in  the 
same  volume  that  records  the  treason  of  Benedict  Ar- 
nold, though  not  on  the  same  blood-stained  and  guilty 
page.  Men  may  escape  merited  punishment  for  a 
time,  but  the  history  and  memory  of  their  misdeeds, 
shall  be  their  assured  retribution. 

Mr.  Allen  also  was  the  attorney-general,  appointed 
November  4th,  1769 — the  last  attorney-general,  we 
think,  that  the  king  of  England  appointed  within  this, 
our  people's  realm.  He  was  faithful  to  his  master,  and 
his  estates  were  confiscated  by  the  people,  to  whose 
sovereignty  he  refused  to  submit.  Of  Andrew  Ham- 
ilton, the  greatest  of  the  provincial  lawyers,  who.  was 
not  raised  to  the  bench,  we  give  a  special  notice  fur- 
ther on.  But  it  would  be  of  no  great  interest  to  the 
reader,  nor,  we  presume,  of  any  value  to  jurisprudence, 


BEFORE    THE    REVOLUTION.  267 

did  we  attempt  to  exhume  the  nearly  forgotten  history 
of  John  White,  "attorney-general  of  Pennsylvania,"  of 
whom  we  know  nothing  but  what  we  get  from  Proud, 
that,  on  the  "25th  October,  1683,"  he  was  appointed 
"to  plead  the  cause  between  the  Proprietary  and 
Governor,  and  Charles  Pickering  and  Samuel  Buckley :" 
— of  another  king's  attorney,  of  whom  even  the  name  is 
lost  to  us,  but  who  was  appointed  17th  November,  1685, 
"  to  prosecute  John  Curtis,  accused  of  speaking  treason- 
able words  against  the  king ;"  of  Samuel  Hensent,  em- 
powered 16th  January,  1685,  "to  prosecute  all  offend- 
ers against  the  penal  laws,  and  to  search  for  those  who 
are  on  record  convicted,  and  prosecute  them  if  they 
have  not  satisfied  the  law;"  of  David  Loyed,  his  suc- 
cessor, appointed  24th  April,  1686,  and  of  whom  we 
know  only  that  he  attempted  unsuccessfully  to  control 
— ^against  William  Bradford,  its  first  defender  in  Ame- 
rica— the  freedom  of  the  press,  which  Mr.  Penn  had 
invited  here;  a  matter  we  tell  of  hereafter:  of  G. 
Lowther,  whose  annals  are  shorter  still  than  Loyed's, 
since  we  know  nothing  of  him  but  the  date  of  his 
appointment,  23d  September,  1706,  or  of  Joseph 
Growden,  Jun.,  who,  succeeding  Andrew  Hamilton  in 
his  office,  was  commissioned  5th  March,  1725.  Our 
read.ers  would  soon  be  wearied  with  such  annals.  They 
are  histories,  however,  which  well  deserve  attention  as 
a  special  subject,  and  are  worthy  of  regard  from  those 
whose  tastes  lead  them  to  vindicate  the  fame  of  our 


268  THE  FORUM. 

early  colonists.  But  it  is  a  task  which  should  be  un- 
dertaken soon.  Even  while  we  write,  the  memo- 
rials which  remain  are  passing  rapidly  to  oblivion.  A 
few  gentlemen  closely  connected  with  the  Historical 
Society  have  of  late  times  done  infinite  service  to  the 
future  history  of  our  city  and  State,  by  the  efforts 
they  have  made  to  bring  together  and  to  preserve,  its 
scattered  and  solitary  fragments.  The  Society  which 
they  represent  and  take  care  of,  deserves  private  and 
public  encouragement;  the  collective  encouragement 
of  the  city,  the  collective  encouragement  of  the  State, 
and  the  individual  encouragement  of  the  people  of 
both.  To  the  labors  of  these  gentlemen,  much  better 
able  than  we  are  to  trace  these  matters  further  and  in 
more  detail,  we  may  be  permitted  respectfully  to  com- 
mend them. 

In  the  foregoing  hasty  and  imperfect  survey  of  the 
earlier  history  of  the  province,  we  have  designedly 
omitted  to  notice  the  early  and  continued  struggle  for 
the  liberty  of  the  press,  and  the  celebrated  trial  of 
John  Peter  Zenger,  for  a  libel,  in  1735,  in  which 
Andrew  Hamilton  manifested  so  much  firmness  and 
ability  as  to  secure  to  himself  the  unquestioned  title 
of  the  first  advocate  of  his  day.  To  this  agreeable 
task  we  now  address  ourselves.  At  the  moment  of 
our  writing,  it  is  a  remarkable  and  interesting  fact, 
that  the  legislature  of  Pennsylvania,  after  a  lapse  of 
more  than  a  century  and  a  half,  have  enacted  a  law 


BEFORE    THE    REVOLUTION.  269 

providing  for  the  admission  of  the  truth  in  evidence, 
on  the  part  of  the  defendant,  in  all  criminal  prosecu- 
tions for  a  libel ;  and  thus  at  least  partially  settled  a 
question  that  has  produced  more  controversy  than 
almost  any  other  connected  with  the  law.  We  may 
also  mention  here  what  is  not  generally  known — that 
John  Peter  Zenger  arrived  in  the  province  of  New 
York  about  the  year  1710 ;  and  was  apprenticed  by 
Governor  Hunter  to  William  Bradford,  who  some  time 
before  this  had  established  himself  there  as  a  printer. 
Afterward,  in  1733,  he  set  up  for  himself  in  New  York ; 
and  in  1735  an  information  for  a  libel  against  the  king 
and  governor,  was  filed  against  him,  and  his  paper  was 
ordered  to  be  burnt  by  the  common  hangman.  His 
devotion  to  the  freedom  of  the  press  seems  to  have 
been  regularly  derived  from  his  master,  as  we  shall 
see,  if  he  did  not  even  "  better  the  instruction." 

The  most  extraordinary  man,  excepting  Dr.  Frank- 
lin and  the  great  Founder,  among  all  who  lived  during 
the  early  provincial  history  of  Pennsylvania,  was 
Andrew  Hamilton,  and  almost  the  only  man  who  de- 
served the  name  of  an  advocate.  From  the  fact  of  one 
of  the  earlier  Lieutenant-governors  appointed  by  Wil- 
liam Penn,  bearing  the  same  name,  they  are  often  con- 
founded together,  or  supposed  to  bear  the  relation  of 
father  and  son.  Yet  the  Hamilton  of  whom  we  now 
speak,  had  no  relationship  or  connexion  with  the  other ; 
they  flourished  a  quarter  of  a  century  apart :  and  in 


270  THE  FORUM. 

truth,  our  subject  originally  bore  the  name  of  Trent — 
was  a  native  of  Ireland,  emigrated  to  this  country, 
and  settled  for  a  time  on  the  Eastern  shore  of  Mary- 
land, where  he  married,  and  afterwards  removed  to 
Philadelphia,  in  the  early  part  of  the  last  century. 

What  were  the  inducements  for  his  change  of  name, 
or  of  residence,  nothing  is  known,  nor  is  it  a  matter  of 
any  interest;  our  business  with  him  is  after  he  reached 
our  soil,  and  not  with  his  antecedents.  He  was  the 
greatest  lawyer  of  his  time  in  this  country,  and  a  man 
of  irrepressible  energy  of  character;  he  became  Pre- 
sident of  the  Executive  Council — Speaker  of  the  Sen- 
ate, and  Attorney-general.  He  planned  and  founded 
the  State-house,  in  which  independence  was  afterwards 
proclaimed.  He  was  a  friend  of  Franklin,  and  a  de- 
voted and  unquestionable  patriot ;  he  received  a  vast 
grant  of  lands  for  his  services,  embracing  Bush-hill,  and 
a  large  part  of  Lancaster  county.  His  scientific  skill 
was  in  requisition  in  almost  all  the  other  colonies,  but 
his  most  remarkable  professional  effort  was  made  in 
behalf  of  John  Peter  Zenger,  to  whom  we  have  referred, 
as  a  printer  in  the  city  of  New  York,  who  was  indicted 
for  a  libel,  published  against  the  government. 

Before  proceeding  to  a  brief  notice  of  this  celebrated 
trial,  we  may  be  permitted  to  give  some  account  of  a 
matter  which  must  ever  be  interesting  in  America : 
the  struggle  between  the  Press  and  the  Crown,  in  the 
infancy  of  this  colony;  which,  while  it  forms  a  proper 


BEFORE    THE    REVOLUTION.  271 

prelude  to  the  trial  in  which  Hamilton  was  afterwards 
engaged,  exhibits  the  early  history  of  the  law  of  libel 
and  the  freedom  of  the  press,  down  to  the  year  1735, 
when  the  case  referred  to  was  determined. 

The  "  Liberty  of  the  Press"  in  America,  is  a  matter 
whose  earlier  history,  we  think,  has  not  been  well  ap- 
prehended, even  among  ourselves,  in  modern  times. 
Knowing,  as  we  do,  that  our  country  was,  as  a  general 
thing,  colonized  by  those  who  left  England  in  discon- 
tent with  its  laws  against  a  general  liberty  on  the  sub- 
jects of  religion  and  politics,  we  have  been  led  to 
suppose  that  THE  PRESS  was  as  free  in  the  early  state 
of  the  colonies,  as  it  has  been  in  our  own  days.  This, 
we  take  it,  is  a  great  mistake ;  it  is,  certainly,  so  far 
as  concerns  Pennsylvania.  There  was,  in  truth,  no 
liberty  of  the  press  at  all,  worth  speaking  of,  in  this 
State,  prior  to  the  year  173^ ;  and  it  seems  to  have 
been  asserted,  maintained,  and  finally  established  by 
the  printers  themselves,  against  the  sharp  and  unscru- 
pulous action  of  the  crown-officers,  who  exercised  in 
this  colony,  at  least,  a  power  far  beyond  any  ever  exer- 
cised contemporaneously  in  England ;  a  power,  indeed, 
such  as  we  find  existing  only  in  tyrannies  as  absolute 
and  irresponsible  as  those  of  Naples,  St.  Petersburgh, 
or  Vienna.  The  history  of  this  subject  is  one  of  grow- 
ing interest;  it  deserves  a  special  study  and  illus- 
tration from  some  literary  man  of  the  country;  and 
such,  sooner  or  later,  it  will  no  doubt  receive.  In 


272  THE  FORUM. 

the  mean  time,  we  give  to  it  a  page  or  two  of  these 
remarks. 

When  Mr.  Penn  had  become  the  Proprietary  of  Penn- 
sylvania, there  is  no  doubt  but  that  he  meant  to  give 
the  colonists  the  benefits  of  the  press,  and  to  allow  to 
it  all  the  liberty  which  it  enjoyed  at  that  time  in  Eng- 
land. In  the  very  incipiency  of  things,  he  addressed 
himself  to  William  Bradford,  a  youth,  originally  of 
Leicester,  where  his  family  belonged,  but  afterwards 
of  London,  to  make  a  venture  of  his  fortunes  with  the 
printing-press,  in  Pennsylvania.  Bradford  was  the 
son-in-law  of  Andrew  Sowles,  a  wealthy  printer  and 
publisher  in  London ;  a  man  of  very  good  character, 
and  a  particular  friend  of  Mr.  Penn,*  whose  regard  for 
him  is  shown  by  his  inviting  him  to  be  one  of  the  wit- 
nesses to  the  charter  of  Pennsylvania.^  It  was  in 
this  way,  we  suppose,  that  Bradford  and  Mr.  Penn 
became  acquainted ;  they  came  to  Pennsylvania  toge- 
ther, as  we  learn  from  Dixon's  Life  of  Penn, J  on  "  The 
Welcome,"  in  1682 ;  and  Bradford  soon  established  his 
press  "near  Philadelphia,"  as  imprints  of  1687  inform 
us.§  He  seems,  at  first,  to  have  confined  himself  to 

*  For  an  account  of  Sowles,  see  a  volume,  entitled  "  Piety  Promoted, 
in  brief  Memorials  of  the  virtuous  Lives,  Services,  and  Dying  Sayings  of 
some  of  the  people  called  Quakers."  Vol.  IL,  London,  1789. 

t  See  fac-simile  in  John  Jay  Smith's  Autograph  Curiosities,  part  2. 

J  Page  263,  London,  1851. 

2  This  person,  the  first  printer  in  America,  south  of  Boston,  it  may  be 


BEFORE    THE    REVOLUTION.  273 

printing  almanacs,  and  such  tracts  of  moral  and  agri- 
cultural instruction  as  all  parties  found  to  be  accept- 
able, and  all  admitted  to  be  not  only  harmless,  but 
eminently  useful.  But  on  political  subjects,  or  such 
religious  controversies  as  the  "  Friends,"  who  then  en- 
grossed the  whole  government,  were  continually  engaged 
in,  he  seems  very  carefully  not  to  have  printed  any 
thing  for  some  years  after  coming  to  the  colony.  In- 
deed, although  one  of  Mr.  Penn's  principal  objects  in 
inviting  him  to  go  with  him  appears  to  have  been  to 
print  the  laws,  such  seems  to  have  been  the  disputa- 
tious character  of  the  colonists,  and  such  their  inclina- 
tion to  interfere  with  the  restraints  which  he  had  placed 
on  his  government,  that  Mr.  Penn  had  hardly  been  in 
the  province  six  months,  when,  at  a  council  at  which 

interesting  here  to  state,  established,  with  Glaus  and  William  Ritten- 
house,  the  first  paper-mill  in  America,  on  the  Wissahicon  creek,  as  early 
probably  as  1685  or  1687.  He  went,  in  1692,  on  the  invitation  of  Colonel 
Fletcher,  to  New  York,  where  he  was  appointed  printer  to  the  Crown,  an 
office  which,  with  his  son  and  grandson,  he  enjoyed  for  fifty  years,  for 
the  three  provinces  of  New  York,  New  Jersey  and  Pennsylvania.  He 
became  rich,  and  died  in  New  York  in  1752,  at  the  advanced  age  of 
ninety-two  years.  There  is  a  monument  to  him  on  the  north  side  of 
Trinity  Church,  New  York,  of  which  venerable  corporation,  as  we  learn 
from  Dr.  Berrian's  sketch,  he  was  for  several  years,  (1703  to  1710,)  a  ves- 
tryman;  as  he  also  was  a  contributor  in  1711,  to  the  embellishment  of 
the  original  edifice  which  occupied  the  site  of  the  present  structure.  It 
was  in  New  York  that  Zenger,  as  we  have  said,  was  apprenticed  to  him 
by  Governor  Hunter.  William  Bradford,  the  second  Attorney-general  of 
the  United  States,  was  the  great-grandson  of  the  first  printer. 


274  THE  FORUM. 

he  presided,  it  was  enacted,  that  the  laws  should  "not 
be  printed"*  He  discovered  that  a  colony,  where  the 
PRESS  was  FREE,  would  start  into  new  being,  and  escape 
entirely  from  his  power.  It  was  a  proof,  not  so  much 
of  Mr.  Penn's  arbitrary  temper,  as  of  his  forecasting 
sagacity.  Things,  however,  went  along  pretty  well, 
till  1689.  In  that  year  some  dissension  having  arisen 
in  the  colony  as  to  the  rights  of  the  settlers,  Joseph 
Growden,  one  of  the  most  intelligent  and  educated 
men  of  the  province,  caused  Bradford  to  print  "  The 
Charter,  or  Frame  of  Government  of  the  Province," 
with  some  remarks  by  Growden.  Bradford  appears 
to  have  anticipated  trouble,  and  therefore  put  no  im- 
print to  the  tract ;  though,  as  he  was  the  only  printer 
south  of  Boston,  in  the  country,  there  was  no  real 
question  by  whom  the  pamphlet  was  printed.  As 
soon  as  it  appeared,  he  was  summoned  before  the  Go- 
vernor and  Council,  and  examined  in  a  way  which 
we  find  very  often  in  the  old  State  trials  of  England, 
but  absolutely  inconsistent  with  any  system  of  legal 
evidence  or  constitutional  government.  A  written  ac- 
count of  this  examination,  in  his  own  hand,  was  found 
within  a  year  past,  among  some  papers  at  Chester,  in 
this  State.  It  has  never  been  printed  before,  and  as 
it  presents  both  a  curious  account  of  the  proceeding 
itself,  and  a  striking  view  of  the  entire  absence  of  the 

*  Provincial  Minutes,  Vol.  I.,  p.  18. 


BEFORE    THE    REVOLUTION.  275 

liberty  of  the  press  in  Pennsylvania  in  that  day,  and 
of  the  earliest  attempts  to  vindicate  it,  we  give  it  here 
entire.  It  will  be  seen,  according  to  this  report  of  the 
proceeding,  that  Mr.  Penn  had  given  "PARTICULAR 
ORDER  FOR  THE  SUPPRESSING  OF  PRINTING"  in  his  province ; 
a  report  which  we  might  almost  believe  to  be  inaccu- 
rate, did  we  not  find  exactly  the  same  thing  asserted 
in  the  printed  Minutes  of  the  Provincial  Council,*  by 
which  we  learn  that  Growden  was  arrested,  as  having 
directed  the  printing  of  the  paper ;  and  that  Governor 
Blackwell  censures  him,  "not  only  for  that  it  was 
false,  but  for  that  the  Proprietor  had  declared  himself 
against  the  use  of  the  printing  press"^  The  paper 
drawn  up  by  Bradford,  and  giving  an  account  of  the 
trial,  is  as  follows  : — 

*  Provincial  Minutes,  Vol.  L,  p.  236. 

f  This  startling  statement  of  Penn's  desire  to  suppress  the  printing 
press  in  his  colony,  rests  upon  Governor  Blackwell's  authority ;  but  there 
would  seem  no  reason  to  doubt  its  accuracy,  as  the  statement  is  made  in 
two  places,  and  in  both  instances  in  the  presence  of  the  Council,  who 
must  have  had  a  knowledge  of  what  was  contained  In  Mr.  Penn's  instruc- 
tions. Of  Governor  Blackwell,  we  have  not  personally  much  knowledge ; 
the  name  of  Blackwell  was  well  known  in  this  city  until  of  late  years, 
when  it  ceased,  we  believe,  with  the  Eeverend  Robert  Blackwell,  D.  D., 
for  many  years  a  minister  of  Christ  Church  and  St.  Peters  ;  but  this  gen- 
tleman was  not  a  descendant  of  the  Governor ;  his  ancestors,  of  an  Eng- 
lish family,  having,  from  a  very  early  date,  been  settled  on  Long  Island 
and  on  Blackwell's.  Island,  of  which  last  they  were  proprietors  ;  and  from 
which  he  came  with  the  American  army,  after  it  left  Long  Island,  as 
Chaplain.  The  Governor  probably  returned  to  England, 


276  THE  FORUM. 

\ 

"  The  examination  of  William  Bradford  before  Governour  Blackwell,  att 
Philadelphia,  the  9th  of  the  Second  motith,  1689,  concerning  printing 
the  Charter. 

Governour. — '  Why,  Sir,  I  would  know  by  what  power  or  autho- 
rity you  thus  print  ?  Here  is  the  Charter  printed  !' 

Bradford. — '  It  was  by  Governour  Penn's  encouragement  I  came 
to  this  province,  and  by  his  license  I  print.' 

Governour. — '  What,  Sir,  had  you  license  to  print  the  Charter  ? 
I  desire  to  know  from  you,  whether  you  did  print  the  Charter  or 
not,  and  who  set  you  to  work  ?' 

Bradford. — '  Governour,  it  is  an  impracticable  thing  for  any  man 
to  accuse  himself;  thou  knows  it  very  well.' 

Governour. — 'Well,  I  shall  not  much  press  you  to  it,  but  if  you 
were  so  ingenuous  as  to  confess,  it  should  go  the  better  with  you.' 

Bradford. — '  Governour,  I  desire  to  know  my  accusers ;  I  think 
it  very  hard  to  be  put  upon  accusing  myself.' 

Governour. — '  Can  you  deny  that  you  printed  it  ?  I  do  know  you 
did  print  it,  and  by  whose  directions,  and  will  prove  it,  and  make 
you  smart  for  it,  too,  since  you  are  so  stubborn.' 

[  Jno.  HiHj  standing  by,  said,  '  Sir,  I  am  informed  that  one  hun- 
dred and  sixty  were  printed  yesterday,  and  that  Jos.  Growden  saith 
he  gave  208  for  his  part  towards  the  printing  it.'] 

Bradford. — '  It's  nothing  to  me,  what  Joseph  Growden  saith,  let 
me  know  my  accusers,  and  I  shall  know  the  better  how  to  make  my 
defence ;  I  do  not  desire  to  do  anything  that  might  give  offence  to 
any ;  I  have  been  here  near  four  years,  and  never  had  so  much  sd  to 
me  before  by  Governour,  or  any  else.  Printing  the  laws,  was  one  of 
the  chief  things  Governour  Penn  proposed  to  me  before  I  came  here, 
yet  I  have  forborne  the  same,  because  I  have  not  had  particular 
order ;  but  if  I  had  printed  them,  I  do  not  know  that  I  had  done 
amiss.' 


BEFORE    THE    REVOLUTION.  277 

Governour. — '  Truly,  I  question  whether  there  hath  been  a  Go- 
vernour  here  before,  or  not,  or  them  that  understood  what  government 
was — which  makes  things  as  they  now  are.' 

Bradford. — '  That's  strange ;  I  do  think  and  believe  that  there 
hath  been  a  Governour  here.  However,  since  thee  came  here,  (Go- 
vernour,) I  never  heard  of  any  thing  to  the  contrary,  but  that  I  might 
print  such  things  as  came  to  my  hand,  whereby  to  get  my  living ;  it 
is  that  by  which  I  subsist ;  nor  do  I  know  of  any  "  Imprimatur" 
appointed.  When  things  are  settled  and  ordered,  I  hope  I  shall 
comply,  so  far  as  to  endeavour  to  avoid  giving  offence  to  any.' 

Governour. — '  Sir,  I  am  "Imprimatur;"  and  that  you  shall  know. 
I  will  bind  you  in  a  bond  of  five  hundred  pounds,  that  you  shall 
print  nothing  but  what  I  do  allow  of,  or  I  will  lay  you  fast.' 

Bradford. — '  Governour,  I  have  not  hitherto  known  thy  pleasure 
herein,  and  therefore  hope  thou  wilt  judge  the  more  favorably,  if  I 
have  done  any  thing  that  does  not  look  well  to  some.' 

Governour. — '  If  you  would  confess  you  might  expect  favour,  but 
I  see  you  are  willfull ;  you  should  have  come  and  askt  my  advice, 
and  not  have  done  any  thing  that  particular  parties  bring  to  you. 
Sir,  I  have  particular  order  from  Governour  Penn  for  the  suppressing 
of  printing  here,  and  narrowly  to  look  after  your  press,  and  I  will 
search  your  house,  look  after  your  press,  and  make  you  give  in  five 
hundred  pound  security  to  print  nothing  but  what  I  allow,  or  I'll 
lay  you  fast.' 

[Jno.  Hill  said,  '  The  Charter  is  the  groundwork  of  all  laws,  and 
for  you  to  print  it  att  this  time  without  order  from  Governour,  is  a 
great  misdemeanor.'] 

[  Griffith  Jones  said :  '  William,  I  doubt  thou  hearest  and  takes 
advice  of  those  who  advise  thee  to  that  which  will  not  be  for  thy 
good  at  last.'] 

Bradford. — '  Governour,  it  is  my  imploy,  my  trade  and  calling, 
and  that  by  wch  I  get  my  living,  to  print ;  and  if  I  may  not  print 


278  THE  FORUM. 

such  things  as  come  to  my  hand,  which  are  innocent,  I  cannot  live : 
I  am  not  a  person  that  takes  such  advice  of  one  party  or  other,  as 
Griffith  Jones  seems  to  suggest.  If  I  print  one  thing  to-day,  and 
the  contrary  party  bring  me  another  to-morrow,  to  contradict  it,  I 
cannot  say  that  I  shall  not  print  it.  Printing  is  a  manufacture  of  the 
nation,  and  therefore  ought  rather  to  be  encouraged  than  suppressed.' 

Governour. — '  I  know  printing  is  a  great  benefit  to  a  country,  if 
it  be  rightly  managed ;  but  if  otherwise,  as  great  a  mischief.  Sir, 
we  are  within  the  king's  dominions,  and  the  laws  of  England  are  in 
force  here,  and  you  know  the  laws,  and  they  are  against  printing, 
and  you  shall  print  nothing  without  allowance ;  I'll  make  Mr.  Grow- 
den  bring  forth  the  printer  of  this  Charter.' 

Bradford. — '  Since  it  hath  been  here  said  that  the  Charter  is  the 
ground  or  foundation  of  all  our  laws  and  priviledges,  both  of  Go- 
vernour and  people,  I  would  willingly  ask  one  question,  if  I  may, 
without  offence,  and  that  is,  whether  the  people  ought  not  to  know 
their  priviledges  and  the  laws  they  are  under  ?' 

[  Griffith  Jones. — '  There  is  a  p'ticular  office,  (MS.  worn  out,)  thou 
knows  where  y*  Charter  is  kept,  and  those  that  want  to  know  any 
thing,  may  have  recourse  thither ;  it  was  a  very  ill  thing  for  thee,  at 
this  juncture,  to  offer  to  print  the  Charter.'] 

Governour. — '  It  is  a  thing  that  ought  not  to  be  made  public  to 
all  the  world,  and  therefore  is  entrusted  in  a  particular  person's 
hand,  whom  the  people  confide  in.' 

[  Griffith  Jones. — '  William,  thou  knows  thy  father  hath  suffered 
much  in  England,  for  printing,  (though  I  do  not  say  for  doing  any 
thing  against  the  law,  or  meddling  with  government,)  and  I  would 
not  have  thee  bring  trouble  upon  thyself.'] 

Bradford. — '  If  it  were  not  for  the  people  to  see  and  know  their 
privileges,  why  was  the  Charter  printed  in  England  ?' 

Govertiour. — 'It  was  not  printed  in  England.' 

Bradford. — '  Governour,  under  favour,  it  was  printed  in  England.' 


BEFORE    THE    REVOLUTION.  279 

Governour. — l  It  was  not — What,  this  Charter  ?' 

Bradford. — 'Yes,  this  Charter,  but  that  some  alterations  have 
been  made  since.' 

[Griffith  Jones. — 'By  what  order  did  you  print  it  in  England  ?'] 

Bradford. — '  By  Grovernour  Penn's.' 

Governour. — '  That  was  something ;  but  you  was  not  to  print  it 
of  your  own  accord.' 

Bradford.— ' Have  I?' 

Governour. — '  That  I  shall  prove  and  make  you  know,  Sir.' 

[  Griffith  Jones. — '  There  is  as  much  need  of  the  alteration  of  the 
Charter  now  as  ever,  and  may  be,  if  six  parts  of  seven  of  the  peo- 
ple be  obtained,  which  is  not  impossible.'] 

Governour. — '  There  is  that  in  this  Charter,  that  which  overthrows 
all  your  laws  and  priviledges :  Governor  Penn  has  granted  more 
priviledge  or  power  than  he  hath  himself.' 

Bradford. — '  That  is  not  my  business  to  judge  of  or  determine ; 
but  if  anything  be  laid  to  my  charge,  let  me  know  my  accusers ;  I 
am  not  bound  to  accuse  myself.' 

Governour. — 'I  do  not  bid  you  accuse  yourself;  if  you  are  so 
stubborn  and  will  not  submit,  I  will  take  another  course.' " 

With  more  to  the  same  purpose. 

We  have  no  report  of  the  way  in  which  the  case 
ended.  Indeed,  Bradford  appears  to  have  been  so 
much  more  than  a  match  for  both  Governor  and  Coun- 
cil, that  it  is  probable  they  were  glad  to  part  with  him 
peaceably.  It  is  certain  his  press  was  not  stopped, 
nor  much  controlled,  notwithstanding  the  assaults 
upon  its  liberty,  by  Penn,  his  deputies  and  council. 
But  further  attacks  of  the  same  kind  were  at  hand. 
In  1692,  a  quarrel  took  place  between  the  Quaker 


280  THE  FORUM. 

magistracy  and  a  part  of  the  Quaker  colonists,  on  a 
question  partly  civil  and  partly  religious ;  and  Brad- 
ford, though  taking  no  part,  apparently,  in  the  quarrel 
itself,  printed  a  pamphlet  of  one  of  the  disputants, 
George  Keith,  who  had  taken  part  against  the  dogmas 
which  the  Quaker  Rabbis,  who  then  thundered  from 
the  seats  of  authority,  now  asserted.  Bradford  was 
arrested,  and  the  sheriff  being  sent  to  search  his  office, 
took  possession  of  his  press,  tools,  type,  and  also  of  the 
"form,"  as  printers  call  it,  (which  he  found  still  stand- 
ing,) from  which  the  obnoxious  pamphlet  had  been 
printed.  The  trial  was  had  in  form  before  two  Quaker 
judges,  Jennings  and  Cook,  assisted  by  others.  A 
curious  contemporary  account  of  it  still  remains  to  us. 
The  prisoner  conducted  his  case  in  person,  and  man- 
aged it  with  a  fearlessness,  force,  acuteness  and  skill 
which  speak  very  highly  for  his  intelligence  and  accu- 
rate conception  of  legal  principles.  When  the  jury 
were  called,  he  challenges  two  of  them  because  they 
had  formed  and  expressed  opinions,  not  as  to  the  fact 
of  his  having  published  the  paper,  but  as  to  its  being 
of  a  seditious  character  ;  opinions  which  he  himself  had 
heard  them  express.  The  Prosecuting  Attorney  says 
to  Bradford,  after  he  had  made  his  exception : 

" '  Hast  thou  at  any  time  heard  them  say  that  thou  printed  the 
paper  ?  for  that  is  only  what  they  are  to  find.' 

Bradford. — '  That  is  not  only  what  they  are  to  find.     They  are 


BEFORE    THE    REVOLUTION.  281 

to  find  also  whether  this  be  a  seditious  paper  or  not,  and  whetJter 
it  does  tend  to  the  weakening  of  the  hands  of  the  magistrates? 

Attorney. — 'No,  that  is  matter  of  law,  which  the  jury  is  not  to 
meddle  with,  but  find  whether  William  Bradford  hath  printed  it  or 
not.' 

Justice  Jennings. — { You  are  only  to  try  whether  William  Brad- 
ford printed  it  or  not.' 

Bradford. — '  This  is  wrong  ;  for  the  jury  are  judges  in  the  law 
as  well  as  in  the  matter  of  fact.' 

Justice  Cook. — '  I  will  not  allow  these  exceptions  to  the  jurors.' " 

We  have,  therefore,  in  this  trial,  evidence  of  the 
fact,  interesting  to  the  whole  press  of  America,  and 
especially  interesting  to  the  Bar  and  the  Press  of  Penn- 
sylvania, that,  on  the  soil  of  Pennsylvania,  the  father 
of  her  press  asserted,  in  1692,  with  a  precision  not 
since  surpassed,  a  principle  hi  the  law  of  libel  hardly 
then  conceived  any  where,  but  which  now  protects 
every  publication  in  this  State*  and  in  much  of  our 
Union;  a  principle  which  English  judges,  after  the 
struggles  of  the  great  whig  Chief  Justice  and  Chancel- 
lor, Lord  Camden,  through  his  whole  career,  and  of  the 
brilliant  declaimer,  Mr.  Erskine,  were  unable  to  reach ; 
and  which,  at  a  later  day,  became  finally  established 

*  From  and  after  the  passage  of  this  Act,  on  the  trial  of  indictments 
for  writing  or  publishing  a  libel,  the  truth  of  the  matter  charged  as  libel- 
lous may  be  given  in  evidence,  and  if  the  jury  in  any  case  shall  find  the 
same  was  written  or  published  from  good  motives  or  for  justifiable  ends, 
and  that  the  matter  so  charged  was  true,  it  shall  operate  to  the  acquittal 
of  defendant  or  defendants. — Acts  of  Assembly  of  Pennsylvania,  1855-56. 

VOL.  I. — 19 


282  THE  FORUM. 

in  England  only  by  the  enactment  of  Mr.  Fox's  libel 
bill  in  parliament  itself. 

Well  authenticated  tradition  has  reported  an  amusing 
anecdote  connected  with  this  trial.*  The  oral  testimony 
upon  the  question,  whether  Bradford  printed  the  "sedi- 
tious libel  ?"  being  insufficient  to  satisfy  the  jury,  the 
form  itself  was  carried  to  their  room.  Attempting  to 
wheel  it  round  into  a  just  position,  one  of  the  Jury,  as 
he  assisted  in  the  effort,  pushed  against  the  bottom 
with  his  cane — he  pushed  a  little  too  hard ;  the  shrunken 
quoins  gave  way.  Like  magic,  the  form  fell  into  a 
confused  heap  of  letters ;  and  a  mass  of  pi,  was  the 
only  evidence  which  the  prosecution  relied  upon  as  its 
convincing  proof!  Bradford  soon  after  published  an 
account  of  his  trial,  which  he  circulated  extensively. 
He  already  had  the  jest  on  his  side,  which,  in  common 
apprehension,  was  a  victory;  and  it  was  not  long  be- 
fore he  got  the  judgment  with  him  also.  He  appealed, 
at  once,  from  the  Justices — the  inferior  County  Court 
which  tried  him — to  the  Governor  in  Council.  Colonel 
Fletcher  was  now  in  power.  The  case  came  on  to  be 
heard  April  27th,  1693,  before  the  Governor,  Lieu- 
tenant-governor, (Markham,)  and  the  Board  of  Council. 
The  minutes  record  his  triumph.f  "  Upon  reading  the 
petition  of  William  Bradford,  printer,  directed  to  his 

*  New  York  Tribune,  of  February  7th,  1849. 

t  Minutes  of  the  Provincial  Council,  Vol.  I.,  p.  326. 


BEFORE    THE    REVOLUTION.  283 

Excellency,  wherein  he  set  forth  that,  in  September 
last,  his  tools  and  letters  were  seized  by  order  of  the 
late  rulers,  for  printing  some  books  of  controversy, 
and  are  still  kept  from  him,  to  the  great  hurt  of  his 
family,  and  prays  relief — his  Excellency  did  ask  the 
advice  of  this  Board ;"  and  "  the  several  members  of 
Council  being  well  acquainted  with  the  truth  of  the 
petitioner's  allegations,  are  of  opinion  and  do  advise 
his  Excellency  to  cause  the  petitioner's  tools  and  let- 
ters to  be  restored  to  him ;"  whereupon  it  was  "  ordered 
that  John  White,  sheriff  of  Philadelphia,  do  restore  to 
William  Bradford,  printer,  his  tools  and  letters,  taken 
from  him  in  September  last."  Bradford's  old  foes 
upon  the  bench,  "Sam.  Jennings"  and  "Arthur  Cook," 
not  long  after  this  resigned  their  places.*  Like  Robin 
hostler,  after  "  the  rise  of  oats,"  it  seemed  as  if  they 
"never  joyed  since;"  "it  was  the  death  of  them." 

This  severe  censorship  of  the  press  by  the  govern- 
ment, by  no  means  ended  with  the  earliest  times  of 
our  colony.  We  find,  that  in  1721,  the  finances  of 
Pennsylvania  having  fallen  into  great  disorder,  some 
one  had  published  a  pamphlet,  entitled  "  Some  Reme- 
dies Proposed  for  Restoring  the  Sunk  Credit  of  the 
Province,"  and  Andrew  Bradford,  a  son  of  the  William 
already  named,  and  whom  we  have  spoken  of  above, 
having  recently  published  his  "American  Weekly  Mer- 

*  Minutes  of  the  Provincial  Council,  Vol.  III.,  p.  141,  142. 


284  THE    FORUM. 

eury,"  the  first  newspaper  printed  in  Pennsylvania,  one 
of  the  persons  in  his  office  inserted  in  the  number  of 
January  2nd,  1721,  the  following  paragraph  on  the 
same  subject:  "Our  General  Assembly,"  it  runs,  "are 
now  sitting,  and  we  have  great  expectations  from  them 
at  this  juncture,  that  they  will  find  some  effectual 
remedy  to  revive  the  dying  credit  of  this  Province,  and 
restore  us  to  our  former  happy  circumstances."     On 
the  21st  of  February,  1721,  Bradford  was  summoned, 
for  this  short  paragraph,  before  the  Provincial  Council. 
Declaring  that  he  knew  nothing  of  the  printing  or  pub- 
lishing of  the  pamphlet,  and  that  the  paragraph  in  the 
Mercury  "was  inserted  by  his  journeyman,  who  com- 
posed the  said  paper  without  his  knowledge,  and  that 
he  was  very  sorry  for  it,"  &c.,  he  escaped  having  his 
press  stopped,  or  being  himself  prosecuted ;  but  he  did 
not  escape  without  a  charge  from  the  Governor,  for  the 
future  "not  to  publish  any  thing  relating  to  or  concern- 
ing the  affairs  of  this  government,  or  any  other  of  his 
Majesty's  colonies,  without  the  permission  of  the  Go- 
vernor or  Secretary  for  the  time  being."     He  was 
dealt  with  more  severely  and  made  a  much  more  vigor- 
ous stand  a  few  years  afterwards.     It  being  near  the 
time  of  the  annual  elections,  a  communication  was  in- 
serted on  the  tendency  of  power  to  perpetuate  itself, 
and  on  the  necessity  of  what  has  since  come  to  be  a 
favorite  and  familiar  doctrine  : — Occasional  Rotation  in 
Office.    It  forms  No.  31,  of  "  The  Busy  Body,"  a  series 


BEFORE    THE    REVOLUTION.  285 

of  essays  begun  by  Franklin  in  Bradford's  "  Mercury," 
and  afterwards  continued  by  different  hands.  It  was 
well  written,  and  though  bold  in  parts,  an  air  of  plea- 
santry took  from  them  much  aspect  of  malignity.  In- 
deed the  whole  piece  is  subdued  below  the  standard 
even  of  orthodoxy  in  modern  Democratic  politics,  and 
it  contains  much  which  Reserves,  and  would  receive,  at 
all  times  the  admiration  of  every  party.*  The  editor 
had  observed  its  language,  and  in  presenting  it,  says 
that  it  was  too  good  to  be  concealed;  that  he  had 
"  repeatedly  invited  the  learned  and  ingenious  to  his 
assistance,  and  given  proper  caution  to  his  correspondents" 
but  that,  not  wishing  to  take  credit  for  any  others' 
labours,  he  published  this  piece  unaltered.  When  it 
appeared,  the  Governor  made  a  special  summons  of  the 
Council,  to  lay  the  matter  before  them.  Bradford  was 

*  "  To  be  friends  of  liberty,"  it  says,  "  firmness  of  mind  and  public 
spirit  is  absolutely  requisite  ;  and  this  quality,  so  essential  and  necessary 
to  a  noble  mind,  proceeds  from  a  just  way  of  thinking  that  we  are  not 
born  for  ourselves  alone,  nor  our  own  private  advantage  alone,  but  like- 
wise and  principally  for  the  good  of  others,  and  service  of  civil  society. 
This  raised  the  genius  of  the  Romans,  improved  their  virtue,  and  made 
them  protectors  of  mankind.  This  principle,  according  to  the  motto  of 
these  papers,*  animated  the  Romans — Cato  and  his  followers — and  it  was 
impossible  to  be  thought  great  or  good,  without  being  a  patriot :  and 
none  could  pretend  to  courage,  gallantry  and  greatness  of  mind,  without 
being  first  of  all  possessed  with  a  public  spirit  and  love  of  their  country.' 

a  The  motto  was  from  Lucan : 

»  "  Haec  duri  immota  Catonis  secta  fuit 

Servari  modura,  finemque  tueri ; 
Nee  sibi  sed  toti  genitum  se  credere  mundo." 


286  THE    FORUM. 

ordered  to  be  "immediately  taken  into  custody  and 
examined  by  the  Mayor  and  Recorder  of  the  City,  .  . 
.  .  .  and  that  his  dwelling-house  and  printing-office  be 
searched  for  the  written  copy  of  said  libel  that  the  au- 
thor may  be  discovered,  and  that  the  attorney-gene- 
ral commence  a  prosecution  against  the  said  Bradford, 
for  printing  and  publishing  the  same."*  He  was  ac- 
cordingly committed  to  prison  and  bound  over  to  the 
court.  His  paper  of  the  following  week  referring  to  the 
article ;  says,  that  it  was  supposed  that  "  enough  had 
been  said  to  introduce  it,  without  blame ;"  that  not- 
withstanding this,  it  had  "  given  offence  undesigned." 
It  thinks  that  the  matter  had  been  misrepresented  to 
the  persons  who  conceived  the  rigorous  usage  neces- 
sary, and  aggravated.  However,  it  gives  a  second 
article  on  the  same  subject ;  and  with  some  independ- 
ence, declares  that  it  had  been  written  and  was  ready 
for  press  before  the  other  was  printed,  and  that  "it 
had  not  been  enlarged,  lessened,  or  altered,"  "for  what 
has  happened  upon  publishing  the  other."f  What  be- 
came of  the  case  finally,  does  not  appear.  Bradford 
made  no  further  apology  nor  submission.  No  inter- 
ruption of  his  press  or  paper  took  place ;  and  the  pro- 
secution had  so  good  an  effect  on  his  reputation,  that 
he  was  soon  afterwards  elected  a  council-man  of  the 

*  Minutes  of  the  Provincial  Assembly,  Vol.  III.,  p.  392.    See  Weekly 
Mercury,  No.  506. 

f  See  Weekly  Mercury,  No.  507. 


BEFORE    THE    REVOLUTION. 

city;  which  he  continued  to  be  for  the  residue  of  his  life. 
From  this  date,  some  fixed  ideas,  originating  from  the 
press  itself,  began  to  be  had  about  its  liberty  in  Penn- 
sylvania ;  and  we  find  both  newspapers  and  pamphlets 
commenting  on  the  concerns  of  government,  with  far 
greater  freedom  than  they  had  done.  In  1735,  An- 
drew Hamilton  made  his  great  defence  of  Zenger.* 

The  history  of  the  trial,  so  far  as  it  is  necessary  to 
be  known,  was  this  : — John  Peter  Zenger  was  indicted 
in  New  York,  for  a  libel  against  the  British  Govern- 
ment and  the  Governor  of  New  York,  before  the  Hon. 
James  De  Lancy,  Chief  Justice  of  the  Province  of  New 
York,  and  the  Hon.  Frederick  Phillipse,  second  Judge, 
on  the  4th  of  August,  1735.  The  defendant  was  de- 
fended by  counsel,  James  Alexander  and  William 
Smith ;  the  first  step  taken  by  whom,  was  in  the 
shape  of  Exceptions  to  the  competency  of  the  court : 

"1.  Because  the  commission  was  granted  during  pleasure;  whereas, 
it  ought  to  be  granted  during  good  behaviour. 

"  2.  That  the  commission  was  granted  by  a  Justice  of  the  Com- 
mon Pleas,  whereas,  it  could  only  be  granted  by  a  Judge  of  the 
King's  Bench. 

"  3.  That  the  form  of  the  commission  was  not  warranted  by  law. 

"4.  It  appears  that  the  commission  was  allowed  by  William 
Cosby,  Esq.,  Governor  of  the  Colony,  and  without  the  advice  or  con- 
sent of  his  Majesty's  Counsel  of  this  Colony,  without  which  the  Go- 
vernor could  not  grant  the  same. 

*  Howell's  State  trials,  Vol.  XVII.,  p.  675. 


288  THE  FORUM. 

"  Wherefore  the  defendant  humbly  hopes,  that  the  Hon.  James 
De  Lancy  will  not  take  cognizance  of  the  same. 

"  Signed, 

"JAMES  ALEXANER, 

"WILLIAM  SMITH." 

The  exceptions  to  the  Hon.  Frederick  Phillips,  were  the  same. 


These  exceptions  on  the  loth  of  April,  1735,  were 
offered  to  the  court,  upon  which  the  Chief  Justice  said 
to  Mr.  Alexander  and  Mr.  Smith,  that  they  ought  well 
to  consider  the  consequences  of  what  they  offered ;  to 
which  they  answered,  they  had  well  considered  the  con- 
sequences ;  and  Mr.  Smith  further  said,  "  that  he  was 
so  well  satisfied  of  the  right  of  the  subject  to  take  an 
exception  to  the  commission  of  a  judge,  if  he  thought 
such  commission  illegal,  that  he  durst  venture  his  life 
upon  that  point." 


"  On  the  16th  (the  first-day,)  Mr.  Smith  asked  the  judges, 
whether  their  honors  would  hear  him  upon  these  two  points : 

"1.  Whether  the  subject  has  the  right  to  take  such  exceptions? 
"  2.  That  the  exceptions  taken  were  legal  and  valid. 

"  To  which  the  Chief  Justice  said,  'that  they  would  neither  hear 
nor  allow  the  exceptions,  for  (said  he,)  you  thought  to  have  gained 
a  great  deal  of  applause  and  popularity  by  opposing  this  court,  as 
you  did  the  Court  of  Exchequer ;  but  you  have  brought  it  to  that 
point,  that  either  we  must  go  from  the  bench,  or  you  from  the  bar.' 
He  then  handed  the  clerk  the  following  paper : — 


BEFORE    THE    REVOLUTION.  289 

"  At  a  Supreme  Court  of  Judicature,  held  for  the  Province  of  New  York, 
at  the  City  Hall  of  the  City  of  New  York,  on  Wednesday,  the  16th 
day  of  April,  1735  ;  present,  the  Hon.  James  De  Lancy,  Esq.,  Chief 
Justice  ;  the  Hon.  Frederic  Phillips,  Esq.,  second  Justice. 

"  James  Alexander,  Esq.,  and  William  Smith,  attorneys  of  this 
Court,  having  presumed  (notwithstanding  they  were  forewarned  by 
the  court  of  their  displeasure,  if  they  should  do  it,)  to  sign,  and 
having  actually  signed  and  put  into  Court,  exceptions  in  the  name  of 
John  Peter  Zengerj  thereby  denying  the  legality  of  the  judges 
their  commissions,  tho'  in  the  usual  form,  and  the  being  of  this 
Supreme  Court.  It  is  therefore  ordered,  that  for  the  said  contempt, 
the  said  James  Alexander  and  William  Smith  be  excluded  from  any 
further  practice  in  this  Court  j  and  that  their  names  be  struck  out  of 
the  roll  of  attorneys  of  this  Court.  PER  CUR. 

JAMES  LYNE,  01. 

"  After  the  order  of  the  court  was  read,  Mr.  Alexander  asked, 
whether  it  was  the  order  of  Mr.  Justice  Phillipse,  as  well  as  of  the 
Chief  Justice  ?  To  which  both  answered,  that  it  was  their  order ; 
upon  which,  Mr.  Alexander  added,  that  it  was  proper  to  ask  that 
question,  that  they  might  know  how  to  have  their  relief.  He  farther 
observed  to  the  court,  upon  reading  the  order,  that  they  were  mis- 
taken in  their  wording  of  it,  because  the  exceptions  were  only  to 
their  commissions,  and  not  to  the  being  of  the  court,  as  is  therein 
alleged ;  and  prayed  that  the  order  might  be  altered  accordingly. 
The  Chief  Justice  said,  they  conceived  the  exceptions  were  against 
the  being  of  the  court.  Both  Mr.  Alexander  and  Mr.  Smith  denied 
that  they  were,  and  prayed  the  Chief  Justice  to  point  to  the  place 
that  contained  such  exceptions;  and  further  added,  that  the  court 
might  well  exist,  though  the  commissions  of  all  the  judges  were 
void ;  which  the  Chief  Justice  confessed  to  be  true  :  and  therefore, 


290  THE  FORUM. 

they  prayed  again,  that  the  order  in  that  point  might  be  altered ; 
but  it  was  denied. 

"  Then  Mr.  Alexander  desired  to  know  whether  they  overruled,  or 
rejected  the  exceptions  ?  The  Chief  Justice  said  he  did  not  under- 
stand the  difference ;  to  which  said  Alexander  replied,  that  if  he 
rejected  the  exceptions,  then  they  could  not  appear  upon  the  pro- 
ceedings, and  in  that  case  the  defendant  was  entitled  to  have  them 
made  part  of  the  proceedings,  by  bills  of  exceptions ;  but  if  they 
overruled  them,  then,  by  so  doing,  they  only  declared  them  not  suf- 
ficient to  hinder  them  from  proceeding  by  virtue  of  those  commis- 
sions ;  and  the  exceptions  would  remain  as  records  of  the  court,  and 
ought  to  be  entered  on  the  record  of  the  cause,  as  part  of  the  pro- 
ceedings. The  Chief  Justice  said  they  must  remain  upon  the  file,  to 
warrant  what  we  have  done ;  as  to  being  part  of  the  record  of  the 
proceedings  in  that  cause,  he  said,  you  may  speak  to  that  point  to- 
morrow. 

"Friday,  April  18th,  1735. 
i  --t 

"  Mr.  Alexander  signified  to  the  court  that,  on  Wednesday  last, 
their  honors  had  said  that  the  counsel  for  Mr.  Zenger  might  speak 
to  the  point  concerning  the  rejecting  or  overruling  of  Mr.  Zenger 's 
exceptions  on  the  morrow;  to  which  the  chief  justice  answered,  that 
he  said  you  may  get  some  person  to  speak  to  that  point  on  the  mor- 
row ;  not  meaning  that  the  said  Alexander  should  speak  to  it,  that 
being  contrary  to  the  order.  Both  Mr.  Alexander  and  Mr.  Smith 
said  they  understood  it  otherwise.  They  both  also  mentioned,  that 
it  was  a  doubt  whether,  by  the  words  of  the  order,  they  were  de- 
barred of  their  practice  as  counsel,  as  well  as  attorneys,  whereas 
they  practised  in  both  capacities.  To  which  the  chief  justice 
answered,  that  the  order  was  plain — "  That  James  Alexander,  Esq , 
and  William  Smith,  were  debarred  and  excluded  from  their  whole 
practice  at  this  bar  j  and  that  the  order  was  intended  to  bar  their 


BEFORE    THE    REVOLUTION.  291 

acting  both  as  counsel  and  as  attorneys,  and  that  it  could  not  be 
construed  otherwise."  And  it  being  asked  Mr.  Phillipse  whether 
he  understood  the  order  so,  he  answered  that  he  did." 


Zenger  being  thus  left  without  counsel,  the  court  ap- 
pointed a  gentleman  much  more  obsequious  to  power,  to 
take  charge  of  his  defence,  who,  after  a  motion  or  two — 
a  mere  show — permitted  the  court  to  have  its  own  way, 
and  Zenger  was  in  a  fair  way,  between  the  despotism  of 
the  court  and  the  subserviency  of  his  lawyer,  to  have 
a  speedy  lodgment  in  the  prison,  when  application  was 
made  by  Zenger's  friends  to  Andrew  Hamilton,  whose 
fame  seems  to  have  spread  over  the  land,  for  his  pro- 
fessional assistance.  Mr.  Hamilton  promptly  responded 
to  the  call,  and  although  he  did  not  renew  the  excep- 
tion which  had  disbarred  Mr.  Smith  and  Mr.  Alexander, 
he  took  a  bold  stand ;  adopting  the  doctrine  of  Brad- 
ford in  its  fullest  scope ;  and  finally  triumphed  over 
both  the  attorney-general  and  the  court,  and  obtained 
for  his  client  a  triumphant  acquittal.  His  services 
appear  to  have  been  gratuitous  and  most  chivalric. 
But  Zenger,  who  was  a  printer,  caused  the  trial  to  be 
accurately  and  fully  reported  and  published,  and  the 
whole  cause  became  one  of  such  notoriety  and  glory, 
that  Hamilton  was  applauded  to  the  very  echo.  A 
gold  box,  with  appropriate  inscriptions,  was  presented 
to  him,  and  the  freedom  of  the  city  conferred  upon 
him.  In  short,  he  acquired  unexampled  reputation, 


292  THE  FORUM. 

in  obtaining  from  the  jury  a  verdict  in  conformity  with 
those  principles  which  so  long  had  been  the  subject  of 
the  most  determined,  but  unavailing  conflict  between 
the  friends,  and  enemies  of  the  liberty  of  the  press. 
It  was  a  triumph  which  even  Erskine,  many  years 
after,  in  the  case  of  the  Dean  of  St.  Asaph,  and  all 
others  during  the  interval,  failed  to  achieve. 

The  law  for  which  Mr.  Hamilton  contended  was  not 
sustained  by  any  of  the  authorities  of  that  day,  but 
obviously  well  founded  in  reason  and  in  principle. 
Yet  still,  to  this  day,  in  some  of  the  States  where 
there  has  been  no  counter  legislation,  the  judges  leave 
nothing  to  the  jury  but  the  publication  and  the  innu- 
endoes, reserving  it  to  themselves  to  determine  upon 
the  question  of  libel  or  no  libel,  even  in  a  criminal  case. 

The  speech  of  Mr.  Hamilton  exhibited  great  power. 
But  that  which  contributed  more  to  his  success  than 
even  his  intellectual  and  legal  ability,  was  his  im- 
perturbable composure  and  firmness  throughout  the 
entire  proceeding.  He  was  a  man  of  great  acuteness, 
great  readiness,  and  no  inconsiderable  wit.  And  it 
is  perfectly  apparent  that,  during  the  entire  trial,  he 
never  shrunk  for  a  moment  from  the  brave  and  judi- 
cious performance  of  his  duty. 

There  are  portions  of  his  argument  that  manifest 
extensive  legal  study  and  a  high  order  of  eloquence ; 
all  of  which,  however,  with  such  a  tribunal,  would  have 
resulted  in  no  benefit  to  his  client,  but  for  what,  in 


BEFORE    THE    REVOLUTION.  293 

homely  phrase,  may  be  called  his  dogged  determination 
to  resist  everything  like  oppression.  Few  speeches, 
from  that  time  down  to  the  present,  have  been  attended 
with  more  beneficial  results,  or  have  shed  greater  light 
upon  the  true  principles  of  the  law  of  libel,  or  greater 
glory  upon  the  advocate. 

After  a  rich  harvest  of  unfading  honors,  Mr.  Hamil- 
ton returned  to  Philadelphia,  where,  on  the  4th  of 
August,  1741,  he  died,  and  was  the  subject  of  the  fol- 
lowing eulogy  from  the  pen  of  Franklin,  which,  for 
simplicity,  strength,  and  beauty,  was  at  once  worthy 
of  the  author  and  his  subject.* 

"  On  the  fourth  instant,  died  Andrew  Hamilton,  Esq.,  and  was 
the  next  day  interred  at  Bush  Hill,  his  country  seat.  His  corpse 
was  attended  to  the  grave  by  a  great  number  of  his  friends,  deeply 
affected  with  their  own  but  more  with  their  country's  loss.  He  lived 
without  enemies ;  for,  as  he  was  himself  open  and  honest,  he  took 
pains  to  unmask  the  hypocrite,  and  boldly  censured  the  knave, 
without  regard  to  station  or  profession.  Such,  therefore,  may  exult 
at  his  death.  He  steadily  maintained  the  cause  of  liberty;  and  the 
laws  made  during  the  time  he  was  speaker  of  the  assembly,  which 
was  many  years,  will  be  a  lasting  monument  of  his  affection  to  the 
people,  and  of  his  concern  for  the  welfare  of  this  province.  He  was 
no  friend  to  power,  as  he  had  observed  an  ill  use  had  been  frequently 
made  of  it  in  the  colonies,  and  therefore  was  seldom  upon  good  terms 

*  "Pennsylvania  Gazette,"  published  on  the  6th  of  August,  1741,  in 
which  will  be  found  the  following  eulogy  upon  Mr.  Hamilton,  which  no 
doubt  was  written  by  Benjamin  Franklin,  who  was  the  editor  of  the 
Gazette. 


294  THE    FORUM. 

with  the  governors.  This  prejudice,  however,  did  not  always  deter- 
mine his  conduct  towards  them,  for  when  he  saw  they  meant  well, 
he  was  for  supporting  them  honorably,  and  was  indefatigable  in 
endeavoring  to  remove  the  prejudices  of  others.  He  was  long  at 
the  top  of  his  profession  here ;  and  had  he  been  as  griping  as  he 
was  knowing,  he  might  have  left  a  much  greater  fortune  to  his  family 
than  he  has  done.  But  he  spent  much  more  time  in  hearing  and 
reconciling  differences  in  private,  (to  the  loss  of  his  fees,)  than  he 
did  in  pleading  causes  at  the  bar.  He  was  just  when  he  sat  as 
judge,  and  though  he  was  stern  and  severe  in  his  manner,  he  was 
compassionate  in  his  nature  and  very  slow  to  punish.  He  was  a 
tender  husband  and  •  a  fond  parent.  But  these  are  virtues  which 
fools  and  knaves  have  sometimes,  in  common  with  the  wise  and  the 
honest.  His  free  manner  of  treating  religious  subjects  gave  offence 
to  many,  who,  if  a  man  may  judge  from  their  actions,  were  not 
themselves  much  in  earnest.  He  feared  God,  loved  mercy,  and  did 
justice.  If  he  could  not  subscribe  to  the  creed  of  any  particular 
church,  it  was  not  for  want  of  considering  them  all,  for  he  had  read 
much  on  religious  subjects.  He  went  through  a  tedious  sickness 
with  uncommon  cheerfulness,  constancy,  and  courage.  Nothing  of 
affected  bravery  or  ostentation  appeared  ;  but  such  a  composure  and 
tranquillity  of  mind  as  results  from  the  reflection  of  a  life  spent 
agreeable  to  the  best  of  man's  judgment.  He  preserved  his  under- 
standing and  his  regard  for  his  friends  to  the  last  moment.  What 
was  given  as  a  rule  by  a  poet,  upon  another  occasion,  may  be  justly 
applied  to  him  upon  this, 

*         '  Servetur  ad  imum 
Qualis  ab  incepto  processerit,  et  sibi  constet.' " 


The  following  Lists  of  Judges  and  Attorneys  General  of  Penn- 
sylvania, prior  to  the  Revolution,  so  far  as  they  can  be  ascertained, 


BEFORE    THE    REVOLUTION. 


295 


may  contribute  to  aid,  in  some  measure,  the  recollections  of  the  past, 
and  in  that  hope  are  submitted  to  our  readers.  The  former  is  taken 
from  the  excellent  Address  of  Mr.  Peter  M'Call,  before  the  Law 
Academy  of  Philadelphia,  in  1838,  of  which  we  regret  not  to  have 
been  able  to  procure  a  copy,  till  the  proof  sheet  of  this  page  was 
passing  through  our  hands ;  the  other  is  a  compilation  by  the  late 
Mr.  Joseph  Reed,  co-editor  with  Mr.  Charles  Smith,  of  an  edition 
of  the  Laws  of  Pennsylvania : — 


JUDGES  OF  THE  PROVINCIAL  SUPREME  COURT. 


1684. 

Nicholas  Moore. 
William  Wood. 
William  Welch. 
John  Turner. 
John  Eckley. 

1685. 

James  Harrison. 
James  Claypoole. 
Arthur  Cooke. 


1686. 

Arthur  Cooke. 
John  Symcocke. 
James  Harrison. 


1690. 

Arthur  Cooke. 
William  Clark. 
Joseph  Grrowdon. 
John  Symcocke. 
William  Clark. 
Arthur  Cooke. 
Griffith  Jones. 
Edward  Black. 


1693. 

Andrew  Robeson. 
William  Salway. 
John  Cann. 

1694. 

Andrew  Robeson. 
Anthony  Morris. 
Edward  Black. 

% 

1699. 

Edward  Shippen. 
Cornelius  Empson. 
William  Biles. 

1702. 

William  Clark. 
Edward  Shippen. 
Thomas  Masters. 

1705. 

John  Guest. 
Joseph  Growdon. 
Jasper  Yeates. 
Samuel  Finney. 
William  Trent. 


296 


THE    FORUM. 


1706. 

Roger  Mbmpeson. 
Joseph  Growdon. 
Jasper  Yeates. 
Samuel  Finney. 
William  Trent. 


1715. 

Joseph  Growdon. 
William  Trent. 
Jonathan  Dickinson. 
George  Roehe. 

1718. 

David  Lloyd. 
William  Trent. 

1726. 

David  Lloyd. 
R.  Hill. 
R.  Asheton. 

9 

1731. 
James  Logan,  C.  J. 

1739. 

Jeremiah  Langhorne. 
Thomas  Graeme. 
Thomas  Griffiths. 

1743. 

John  Kinsey. 
Thomas  Graeme. 


1743. 
William  Tell. 

1750. 

William  Allen. 
Lawrence  Growdon. 
Caleb  Cowpland. 

1759. 

William  Allen. 
Lawrence  Growdon. 
William  Coleman. 

1764. 

William  Allen. 
William  Coleman. 
Alexander  Stedman. 

1767. 

William  Allen. 
William  Coleman. 
John  Lawrence. 
Thomas  Willing. 

1768. 

William  Allen. 
John  Lawrence. 
Thomas  Willing. 

1774. 

Benjamin  Chew. 
John  Lawrence. 
Thomas  Willing. 
John  Morton. 


BEFORE    THE    REVOLUTION.  297 


ATTORNEYS  GENERAL  OF  THE  PROVINCE  OF  PENNSYL- 
VANIA. 

1.  John  White,  25th  October,  1683,  and  17th  November,  1685.     Spe- 

cially appointed. 

2.  Samuel  Hensent,  16th  January,  1685;   to  prosecute  all  offenders 

against  her  penal  laws. 

3.  David  Lloyd,  24th  April,  1686. 

4.  G.  Lowther,  23d  September,  1706. 

5.  Andrew  Hamilton,  1717. 

6.  Joseph  Growdon,  Jun.,  5th  March,  1725. 

7.  John  Kinsey,  6th  July,  1738. 

8.  Tench  Francis,  1741. 

9.  Benjamin  Chew,  27th  January,  1755. 

10.  Andrew  Allen,  4th  November,  1769.     The  last  Attorney  General 
under  the  king. 


VOL.  I.— 20 


CHAPTER,  III. 

/ 

THE    JUDICIARY. 

APPOINTMENTS— TENURES— SALARIES. 

DOWN  to  the  year  1756,  when  Lord  Mansfield,  in  the 
fifty-first  year  of  his  age,  first  took  his  seat  as  Chief 
Justice  of  the  Court  of  King's  Bench,  with  the  excep- 
tion of  Gascoyne,  Coke,  Hobert,  Hale,  Holt,  Somers, 
Clarendon,  Vaughan,  and  a  few  others,  there  was  no 
Chief  Justice,  either  in  the  Common  Pleas  or  King's 
Bench,  who,  for  his  good  deeds,  deserves  to  be  remem- 
bered. And  even  Coke,  with  all  his  learning,  indus- 
try and  firmness,  was  essentially  an  arbitrary,  heart- 
less, selfish  tyrant,  who  led  the  way,  by  his  brilliant 
and  powerful  example,  to  many  of  the  cruelties  and 
murders,  that  afterwards  stained  the  criminal  jurispru- 
dence of  England.  Thus  it  is,  that  one  strong  man 
may  do  more  in  the  way  of  evil,  than  twenty  weak 
ones,  as  he  is  quoted  as  an  example  and  excuse. 


THE    JUDICIARY.  299 

Coke  is  entitled,  with  all  his  talents,  to  rank  with 
the  "Bloody  Judges,"  and  his  praise  will  be  min- 
gled with  the  censure  of  all  just  men,  in  all  time  to 
come.  His  conduct  towards  the  illustrious  though 
unhappy  Raleigh,  and  his  unsparing  malignity  towards 
Lord  Bacon,  both  of  whom,  with  all  their  faults,  were 
infinitely  his  superiors,  will  last  as  long  in  history  as 
he  does,  and  more  than  obscure  his  legal  fame.  And  it 
was  well  said  by  Lord  Mansfield,  while  solicitor-gene- 
ral, in  defending  himself  against  the  charge  of  adhering 
to  the  pretender, — "  If  I  had  been  counsel  for  the  crown 
against  Sir  Walter  Raleigh,  and  the  unfortunate  man 
had  been  as  clearly  guilty  of  high  treason  as  the  rebel 
lords,  I  would  not  have  made  Sir  Edward  Coke's 
speech  against  him,  to  gain  all  Sir  Edward  Coke's 
estate,  and  all  his  reputation."  Such  were  the  senti- 
ments of  one,  who  afterwards  became  the  most  accom- 
plished judge,  in  all  respects,  that  ever  adorned  an 
English  court. 

Take  Coke  for  all  in  all,  though  a  great  lawyer,  he 
was  a  bad  man,  in  his  private  as  well  as  his  public 
relations ;  and  therefore  certainly  not  a  great  man. 
He  would  have  been  long  since  forgotten,  or,  if  still 
remembered,  remembered  only  to  be  condemned,  had 
it  not  been  that  his  history  is  so  connected  with  that 
of  the  common  law,  as  to  render  them  inseparable. 
His  law  reputation,  therefore,  will  probably  endure  as 
long  as  the  legal  profession  lasts. 


300  THE    FORUM. 

As  the  Greek  and  Roman  poets  and  philosophers 
are  perpetuated  by  collegiate  instruction,  so  Coke  and 
some  of  his  cotemporaries,  being  looked  to  as  the 
founders  and  pillars  of  a  great  science,  are  still  wor- 
shipped with  a  sort  of  superstitious  awe  and  reverence ; 
yet  there  have  been  better  philosophers  than  Aristotle, 
or  Plato ;  better  poets  than  Homer,  or  Virgil,  and 
better  lawyers  than  Sir  Edward  Coke.  Still,  such  is 
the  force  of  traditionary,  scholastic  and  professional 
prejudice,  that  three-fourths  of  the  bar  will,  no  doubt, 
raise  their  hands  in  holy  horror,  against  this  extraordi- 
nary attack  upon  the  law's  anointed. 

With  the  exception  of  the  judges  that  we  have 
referred  to,  we  repeat,  there  were  few  or  none,  worthy 
of  regard  or  respect.  They  were  the  mere  pimps  and 
panders  of  the  crown,  and  they  received  their  appoint- 
ments, for  the  most  part,  because  they  were  so.  The 
law,  as  they  administered  it,  was  just  what  his  majesty 
pleased,  or  what  judicial  popularity  was  supposed  to 
require.  There  was  scarcely  even  a  pretension  to 
character,  decency,  or  fitness  among  them.  Some  of 
them  had  been  foot-pads — some  drunkards  and  de- 
bauchees— some  destitute  of  all  learning — some  in- 
mates of  prisons — some  executed,  and  others  deserving 
to  be  so.  Even  the  infernal  Jeffries,  was  hardly  su- 
preme in  his  "bad  eminence,"  although  literally  crushed 
to  death  under  the  heavy  curses  of  an  outraged  people, 
and  without  the  aid  of  a  single  voice,  to  say  "God 


THE    JUDICIARY.  301 

bless  him,"  in  his  extremity.  Since  their  time,  how- 
ever, judicial  manners,  morals  and  talents,  have  much 
improved  in  the  mother  country;  and  her  judiciary 
have  long  continued  to  be  looked  upon  as  objects  of 
esteem  and  veneration,  instead  of  contempt  or  abhor- 
rence. 

During  the  reign  of  Elizabeth,  and  James  the  First, 
the  puisne  judges  of  the  King's  Bench  and  Common  Pleas 
held,  Quam  diu  nobis  placuerent ;  and  the  judges  of  the 
Exchequer,  Quam  din  lene  se  gesserint;  but  in  1640,  the 
patents  of  all  the  judges  ran,  durante  beneplacito — after- 
wards they  were  changed,  and  again  ran,  "quam  diu" 
&c.,  but  this  being  found  inconvenient  from  those  offices 
not  being  entirely  dependent  on  the  crown,  the  old 
form  of  the  patent,  "  durante  lene  placito"  was  restored 
and  so  continued  until  the  early  part  of  the  reign  of 
George  the  Third,  when  the  judges  ceased  to  be  utterly 
dependent  upon  the  royal  will,  or  the  machinations  of 
ministers,  and  were  placed  upon  the  same  footing  as 
with  us ;  holding  their  offices  upon  the  more  reasonable 
and  equitable  footing  of  their  own  "good  behaviour;" 
the  result  of  which  is,  that  the  last  century  has  not 
only  furnished  no  legitimate  successor  of  Jeffries,  or 
Wright,  or  Norbury,  but  no  remote  imitation  of  any  of 
the  monsters  who,  before  the  revolution,  while  arrayed 
in  judges  robes,  degraded  their  high  calling,  and  pro- 
faned the  very  sanctity  and  sacristy  of  virtue.  The 
waves  of  innocent  blood  have  at  length  subsided,  and 


302  THE  FORUM. 

justice  and  mercy,  moderation  and  truth,  and  wisdom, 
and  virtue,  now  sway  the  sceptre  and  suspend  the  scales, 
which  were  for  a  time  wrenched  from  them  by  iniquity 
and  cruelty,  rashness  and  rudeness,  folly  and  wicked- 
ness. May  this  salutary  and  glorious  reform  be  per- 
petual. 

With  the  American  Courts,  during  somewhat  less  than 
a  century,  incompetency  has  been  the  exception,  not 
the  rule,  and  want  of  honesty  has  never  been  charged 
against  an  American  judge,  and  perhaps  never  been 
suspected.  The  tenure  for  "  life  or  good  behaviour," 
has  been  most  salutary,  and  admirably  adapted  to  our 
system  of  government.  The  results  are  its  best  com- 
mentary :  no  judge  with  us  has  ever  been  removed  or 
impeached  for  corruption,  or  deserved  to  be  so  removed 
or  impeached.  On  the  contrary,  whatever  may  be 
thought  of  the  competency  of  some  of  our  judges,  or  the 
incompetency  of  what  were  called  Governor  Snyder's 
"  common  sense  Associate  Judges,"  they  have,  one  and 
all,  on  the  score  of  integrity  and  general  respectability, 
been  unexceptionable.  They  may  have  had  blemishes 
or  faults ;  but  certainly  cruelty  or  dishonesty  was  not 
among  them ;  and  it  may  be  generally  said,  that  an 
abler  or  purer  body  of  men,  has  rarely  graced  the  judi- 
cial seat  in  any  country. 

This  difference  between  the  English  and  American 
courts  has  been  dependant,  no  doubt,  partly  upon  the 
different  forms  and  principles  of  the  governments — 


THE    JUDICIARY.  303 

I 

partly  upon  the  modes  of  appointment,  and  probably 
not  a  little  attributable  also  to  the  "si  bene  gesserint" 
clause,  provided  for  by  our  Constitution,  and  omitted 
in  the  English  statute.  Until  recently,  judges  with  us 
received  their  offices  from  the  Executive  of  the  state, 
with  the  approval  or  consent  of  the  senate,  and  held 
their  posts  for  life,  "  or  so  long  as  they  should  behave 
themselves  well." 

By  the  constitution  adopted  on  the  22nd  of  Febru- 
ary, 1838,  as  appears  by  the  fifth  article,  their  life 
tenure  was  changed  to  an  office  for  years. 


CONSTITUTION   OF   PENNSYLVANIA. 

OF    THE    JUDICIARY. 

ART.  5. — Sec.  11.  The  Judges  of  the  Supreme  Court,  of  the 
several  courts  of  Common  Pleas,  and  of  such  other  courts  of  record 
as  are  or  shall  be  established  by  law,  shall  be  nominated  by  the 
governor,  and  by  and  with  the  consent  of  the  senate,  appointed  and 
commissioned  by  him.  The  Judges  of  the  Supreme  Court  shall 
hold  their  offices  for  the  term  of  fifteen  years,  if  they  shall  so  long 
behave  themselves  well.  The  president  Judges  of  the  several  courts 
of  Common  Pleas,  and  of  such  other  courts  of  record  as  are  or  shall 
be  established  by  law,  and  all  other  judges  required  to  be  learned 
in  the  law,  shall  hold  their  offices  for  the  term  of  ten  years,  if  they 
shall  so  long  behave  themselves  well.  The  Associate  Judges  of  the 
courts  of  Common  Pleas,  shall  hold  their  offices  for  the  term  of  five 
years,  if  they  shall  so  long  behave  themselves  well.  But  for  any 


304  THE  FORUM. 

reasonable  cause,  which  shall  not  be  sufficient  ground  of  impeachment, 
the  governor  may  remove  any  of  them,  on  the  address  of  two-thirds 
of  each  branch  of  the  legislature. 


OF   AMENDMENTS. 

ART.  10. — By  the  tenth  Article,  it  is  provided,  that  "Any  amend- 
ments  to  the  Constitution  may  be  proposed  in  the  Senate  or  House 
of  Representatives ;  and  if  the  same  shall  be  agreed  toby  a  majority 
of  the  members  elected  to  each  House,  such  proposed  amendment  or 
amendments,  shall  be  entered  on  the  journals,  with  the  ayes  and 
nays  taken  thereon ;  and  the  Secretary  of  the  Commonwealth  shall 
cause  the  same  to  be  published  three  months  before  the  next  elec- 
tion, in  at  least  one  newspaper  in  every  county  in  which  a  newspaper 
shall  be  published ;  and  if,  in  the  legislature  next  after  chosen,  such 
proposed  amendment  or  amendments  shall  be  agreed  to,  by  a  ma- 
jority of  the  members  elected  to  each  House,  the  Secretary  of  the 
Commonwealth  shall  cause  the  same  again  to  be  published,  in  man- 
ner aforesaid ;  and  such  proposed  amendment  or  amendments  shall 
be  submitted  to  the  people,  in  such  manner,  and  at  such  time,  at 
least  three  months  after  being  so  agreed  to  by  the  two  Houses,  as 
the  legislature  shall  prescribe ;  and  if  the  people  shall  approve  and 
ratify  such  amendment  or  amendments,  by  a  majority  of  the  quali- 
fied voters  of  the  State  voting  thereon,  such  amendment  or  amend- 
ments shall  become  a  part  of  the  Constitution ;  but  no  amendment  or 
amendments  shall  be  submitted  to  the  people  oftener  than  once  in 
five  years,  &c. 

The  following  amendment,  (in  pursuance  of  the  au- 
thority of  the  llth  article,)  having  been  agreed  to  by 


THE    JUDICIARY.  3Q5 

the  legislature,  at  the  sessions  of  1849  and  1850,  was 
ratified  by  a  majority  of  the  qualified  voters  of  the 
State  of  Pennsylvania,  at  the  general  election,  held  in 
a  majority  of  the  members  elected  to  each  house  of  the 
October,  1850,  and  thereby  became  a  part  of  the  Con- 
stitution. 


AMENDMENT. 

ARTICLE  1. — The  judges  of  the  Supreme  Court,  of  the  several 
Courts  of  Common  Pleas,  and  of  such  other  courts  of  record  as  are 
or  shall  be  established  by  law,  shall  be  elected  by  the  qualified  elec- 
tors of  the  Commonwealth,  in  manner  following,  to  wit :  The  judges 
of  the  Supreme  Court  by  the  qualified  electors  of  the  Commonwealth 
at  large:  the  president  judges  of  the  several  Courts  of  Common 
Pleas,  and  of  such  other  courts  of  record  as  are  or  shall  be  estab- 
lished by  law,  and  all  other  judges  required  to  be  learned  in  the 
law,  by  the  qualified  electors  of  the  respective  districts  over  which 
they  are  to  preside,  or  act  as  judges ;  and  the  Associate  Judges  of 
the  Courts  of  Common  Pleas,  by  the  qualified  electors  of  the  counties 
respectively.  The  judges  of  the  Supreme  Court  shall  hold  their 
offices  for  the  term  of  fifteen  years,  if  they  shall  so  long  behave 
tJiemselves  well,  (subject  to  the  allotment  hereinafter  provided  for, 
subsequent  to  the  first  election.)  The  president  judges  of  the  seve- 
ral Courts  of  Common  Pleas,  and  of  such  other  courts  of  record  as 
are  or  shall  be  established  by  law,  and  all  other  judges  required  to 
be  learned  in  the  law,  shall  hold  their  ofiices  for  the  term  of  ten 
years,  if  they  shall  so  long  behave  themselves  well ;  all  of  whom 
shall  be  commissioned  by  the  Governor ;  but  for  any  reasonable 
cause,  which  shall  not  be  sufficient  ground  of  impeachment,  the 


306  THE  FORUM. 

Governor  shall  remove  any  of  them,  on  the  address  of  two-thirds  of 
each  branch  of  the  legislature,  &c. 

Thus  life  appointments,  it  appears,  in  February, 
1838,  were  changed  to  terms  for  years;  and,  in  1850, 
the  appointments  became  elective,  instead  of  "execu- 
tive with  consent  of  senate:"  but  the  clause  of  good 
behaviour  still  remains,  accompanied  and  sanctioned 
by  the  judicial  oath. 

The  proposal  to  substitute  the  tenure  for  years,  for 
tenure  for  life,  was  powerfully  but  unavailingly  opposed 
in  the  convention  at  which  the  constitution  was 
adopted ;  and  although  by  a  constitutional  vote  of  the 
people,  the  amendment  providing  for  the  election  of 
judges  was  finally  ratified,  the  passage  of  the  article 
submitted  to  the  popular  vote  was  strenuously  resisted 
in  the  legislature,  by  some  of  the  ablest  of  its  members. 
It  is  not  necessary  to  refer  to  the  arguments  for  or 
against  it ;  they  are  best  presented  in  the  reports  of 
the  debates  of  the  time,  to  which  the  curious  or  inqui- 
sitive are  referred.  Let  it  suffice  that,  in  this  age  of 
experiment,  hope  triumphed  over  experience,  and  the 
judges  became  elective  and  temporary,  instead  of  receiv- 
ing their  appointments  as  theretofore  from  the  governor, 
through  the  senate.  Hitherto  there  has  been  no  reason 
to  complain  of  the  result.  The  judges,  elected  through 
the  popular  and  political  vote,  have  been  unexception- 
able— competent  lawyers,  of  great  experience;  of  untir- 
ing industry,  and  undoubted  honesty.  With  one  or  two 


THE    JUDICIARY.  3Q7 

exceptions,  none  of  them  were  very  highly  distinguished 
or  extensively  known  as  advocates;  but  probably  as 
much  so,  as  many  of  their  predecessors.  This  is, 
perhaps,  rather  a  recommendation  than  an  objection, 
for  we  do  not  agree  with  Lord  Brougham,  Lord  Ers- 
kine,  or  Lord  Campbell,  that  men  of  extensive  busi- 
ness, and  distinguished  eloquence  at  the  bar,  make  the 
best  judges.  And  the  noble  lords  referred  to,  who  were 
the  most  distinguished  barristers  of  their  day,  cannot 
themselves  be  cited  as  furnishing,  in  their  judicial  career, 
an  enforcement  or  confirmation  of  their  own  theory. 

In  this  country,  experience  has  taught  the  same  les- 
son. James  Wilson,  who  ranked  with  the  first  class  of 
lawyers,  and  who  afterwards  was  raised  to  the  Supreme 
Court  of  the  United  States,  gained  nothing  in  reputa- 
tion by  the  exchange ;  but,  in  the  language  of  one  of 
the  ablest  of  his  cotemporaries,  "  Mr.  Wilson  on  the 
bench  was  not  equal  to  Mr.  Wilson  at  the  bar." 
Nor  did  Jared  Ingersoll,  Moses  Levy,  or  Charles 
Huston,  all  men  possessed  of  the  highest  legal  attain- 
ments,— of  the  most  persuasive  eloquence, — increase, 
while,  in  their  judicial  posts,  the  laurels  which  they 
had  deservedly  acquired  at  the  bar.  The  reason 
of  this,  as  suggested  elsewhere,  would  seem  to  be, 
that  the  duty  of  a  judge  is  didactic,  that  of  a  bar- 
rister argumentative.  The  former  looks  upon  the 
whole  of  a  cause  without  bias  or  partiality ;  the  latter 
identifies  himself  with  his  client,  and,  while  he  views 


308  THE  FORUM. 

everything  that  makes  for  him  with  favorahle  eyes, 
looks  upon  everything  that  operates  against  him,  with 
suspicion  and  distrust.  A  lawyer  in  full  practice, 
when  elevated  to  the  bench,  cannot  change  his  habits 
with  his  position,  or  turn  the  current  of  his  thoughts 
or  his  practice  back  upon  itself.  This  metamorphosis 
will  be  attempted,  of  course,  because  duty  demands  it; 
but  it  is  not  a  work  of  ease  or  of  a  moment,  but  of  labor 
and  of  years.  Even  Lord  Campbell  himself  seems  to 
adopt  those  views ;  and  expresses  them  much  better  than 
we  could,  when  he  says,  in  his  lives  of  the  chief  justices : 

"  The  celebrated  advocate,  when  placed  on  the  bench,  embraces 
the  side  of  the  plaintiff  or  of  the  defendant,  with  all  his  former  zeal : 
and,  unconscious  of  partiality  or  injustice,  in  his  eagerness  for  victory, 
becomes  unfit  fairly  to  appreciate  conflicting  evidence,  arguments, 
and  authorities.  The  man  of  a  naturally  morose  or  impatient  tem- 
per, who  had  been  restrained  while  at  the  bar  by  respect  for  the 
ermine,  or  by  the  dread  of  offending  attorneys,  or  by  the  peril  of 
being  called  to  a  personal  account  by  his  antagonist  for  impatience, 
when  he  is  constituted  a  living  oracle  of  the  law,  puffed  up  by  self- 
importance,  and  revenging  himself  for  past  subserviency,  is  insolent 
to  his  old  competitors;  bullies  the  witnesses  and  tries  to  dictate  to 
the  jury.  The  sordid  and  selfish  practitioner  who,  while  struggling 
to  advance  himself,  was  industrious  and  energetic,  having  gained  the 
object  of  his  ambition,  proves  listless  and  torpid,  and  is  quite  content 
if  he  can  shuffle  through  his  work  without  committing  gross  blunders 
or  getting  into  scrapes.  Another,  having  been  more  laborious  than 
discriminating,  when  made  a  judge,  hunts  after  small  or  irrelevant 
points,  and  obstructs  the  business  of  his  court  by  a  morbid  desire  to 
investigate  fully,  and  to  decide  conscientiously.  The  recalcitrant 


THE    JUDICIARY.  3Q9 

barrister,  who  constantly  complained  of  the  interruptions  of  the  court, 
when  raised  to  the  bench,  forgets  that  it  is  his  duty  to  listen  and  be 
instructed,  and  himself  becomes  a  by- word  for  impatience  and  loqua- 
city. He  who  retains  the  high-mindedness  and  noble  aspirations 
which  distinguished  his  early  career,  may,  with  the  best  intentions, 
be  led  astray  into  different  courses,  and  may  bring  about  a  collision 
between  different  authorities  in  the  State,  which  has  long  moved 
harmoniously,  by  indiscreetly  attempting  new  modes  of  redressing 
grievances,  and  by  an  uncalled  for  display  of  heroism." 


But  the  question  is  not  as  to  whether  the  best  advo- 
cates will  make  the  best  judges ;  but  whether  judges 
chosen  by  a  popular  and  political  vote,  for  a  term  of 
years,  are  more  eligible,  than  judges  appointed  for  life 
by  the  executive,  and  confirmed  by  the  senate. 

As  to  the  mere  appointing  power,  it  may  be  said 
that  the  people  elect  the  governor  and  the  senate,  and 
that  therefore  the  only  difference  is,  between  their  voting 
for  the  judges  directly,  and  those  judges  being  appointed 
by  others,  whom  the  people  have  chosen  for  the  execu- 
tive or  legislature.  That,  in  either  case,  the  judges  are 
political  judges.  But  let  it  be  remembered  that  judges 
are  but  men,  and  subject,  to  some  extent,  to  human 
influences ;  that  they  are  doubly  subject  to  them,  by 
holding  their  appointments  for  terms  of  years,  and 
being  dependent  upon  re-election  for  continuance  of 
office ;  that  this  brings  them  into  close  connexion  with 
party  politics  and  partizans,  upon  whom  that  election 
directly  depends ;  that  those  very  persons  are,  from  time 


310  THE    FORUM. 

to  time,  suitors  or  parties  before  the  courts,  or  exercise, 
or  may  exercise,  influence  over  their  salaries,  or  expect 
favors  which  no  judge  would  grant,  or  suspect  favors 
where  none  could  be  granted.  By  this  state  of  things 
our  judges,  though  better  men,  are  brought  into  the 
condition  of  those  government  judges  who  pandered  to 
the  whim,  will,  pleasure,  or  caprice  of  the  appointing 
power  to  secure  their  places. 

"  No  man,"  says  Lord  Brougham,*  "  can  be  a  judge 
in  England,  who  is  not  of  a  particular  party,  unless  he 
profess  himself  to  be  devoted  to  one  scheme  of  policy ; 
unless  his  party  happen  to  be  the  party  connected  with 
the  crown,  or  allied  with  the  minister  of  the  day,  there 
is  no  chance  for  him — that  man  is  surely  excluded." 
Nor  is  the  doctrine  much  better  adapted  to  the  latitude 
of  England  than  of  the  United  States.  We  are  speak- 
ing to  human  nature,  and  not  to  individuals,  when  we 
seriously  ask,  How  is  it  possible  that  judges,  who,  for 
the  most  part,  receive  their  offices  in  requital  of  their 
political  party  devotion,  should,  in  contemplating  their 
services  at  the  polls  —not  at  the  bar — forget  the  pro- 
bable reward  of  continued  fidelity  to  the  ruling  power  ? 

There  is  another  objection  that  arises  out  of  "poli- 
tical appointments — terms  for  years  and  inadequate 
salaries ;"  and  especially  the  latter.  You  find  the 
judges,  from  actual  necessity — which  it  is  said  has 

*  Brougham's  Speech  upon  the  Reform  of  the  Laws  of  England. 


THE  JUDICIARY. 

no  law — annually  presenting  their  appeals,  almost  in 
forma  pauperis,  to  the  Legislature,  for  an  additional 
allowance.  This  is  much  to  be  deplored,  yet  not  easily 
avoided. 

But,  we  are  told,  the  application  is  made  by  the 
bar — not  the  judges.  The  bar,  in  truth,  have  pro- 
perly nothing  to  do  with  it;  and  if  they  had,  they 
adopt  awkward  means  and  unseasonable  times,  in  order 
to  its  accomplishment.  There  is  an  indelicacy  in  the 
movement,  that  must  shock  and  humiliate  even  those  for 
whose  just  pecuniary  advantage  it  is  designed.  A  meet- 
ing is  got  up,  as  it  were,  under  the  very  noses  of  the 
judges;  a  committee  is  appointed  to  visit  Harrisburg;  the 
newspapers  teem  with  mingled  hopes  and  fears  of  the 
result ;  and  after  a  sort  of  system  of  log-rolling,  nothing  is 
done.  Delicate,  deliberate,  and  effective  means,  should 
be  adopted,  corresponding  with  the  moral  dignity  of  the 
bench,  and  the  honesty  and  integrity  of  the  bar.  The 
Legislature  should,  especially,  and  without  solicitation, 
guard  the  rights  and  safety  of  the  judiciary,  a  co-ordi- 
nate branch  of  the  government;  and  not,  in  their  devo- 
tion to  mere  artificial,  financial,  or  local  improvements, 
"  like  the  base  Judean,  throw  a  pearl  away,  richer  than 
all  their  tribe." 

There  are  men  at  the  bar  who,  being  unable  to  rise  by 
direct  means,  or  by  force  of  their  own  unassisted  abilities, 
endeavor  thus  to  secure  favor  with  the  courts.  That 
favor,  whether  actual  or  imaginary,  attracts  clients, 


THE    FORUM. 

and  consequently  extends  business.  How  is  this  object 
to  be  attained  ?  By  getting  up  a  project  for  the  in- 
crease of  judicial  salaries.  Petitions  are  annually  circu- 
lated. The  toadies  and  supernumeraries,  of  course,  all 
sign ;  those  who  are  indifferent  sign,  as  they  are  willing  to 
advance  the  interest  of  others ;  and  those  who  are  actu- 
ally opposed  (not  to  the  object  but  the  means)  also  sign, 
as  they  do  not  wish  to  incur  the  antipathies  of  tribu- 
nals— that  should  have  no  antipathies — that  should  ask 
no  favors  and  fear  no  frowns. ,  What  can  be  more  unfa- 
vorable to  a  due  and  impartial  administration  of  justice 
than  such  a  course  ?  It  subjects  the  judges  to  obliga- 
tions to  the  bar,  which  they  may  not  acknowledge,  but 
still  must  feel.  And  it  at  the  same  time  lowers  the 
reputation  of  the  members  of  the  bar, 

"Who  crook  the  pregnant  hinges  of  the  knee, 
That  thrift  may  follow  fawning." 

I  agree  with  the  doctrine  of  Angelo,  that  it  is  "  one 
thing  to  be  tempted,  and  another  thing  to  fall ;"  yet 
from  a  source  of  higher  wisdom  we  are  taught  to  "PRAY 
against  temptation."  But  even  if  the  duties  of  the  judi- 
ciary should  be,  as  they  at  present  are,  impartially  and 
faithfully  performed,  the  very  influences  to  which  they 
appear to  be  exposed,  but  which  they  honestly  resist,  are, 
by  disappointed  suitors  or  vindictive  men,  conjured  up 
and  relied  upon  to  support  unfounded  slanders,  by  which 
the  sacred  ermine  of  justice  is  sullied  and  disfigured. 


THE    JUDICIARY.  313 

Now,  the  integrity  and  purity  of  our  present  judi- 
ciary may  be  proof  against  all  these  difficulties  and 
assaults.  Still,  how  long  are  they  to  last,  and  who  are 
to  succeed  them  ?  Ay,  there's  the  rub  !  Death,  party 
political  changes,  resignations,  casualties,  all  or  any  of 
them,  may  produce  vacancies.  How  are  those  vacancies 
to  be  filled,  as  our  elections  are  now  regulated  ?  Like 
the  witches'  cauldron  in  Macbeth,  the  POLLS  are  made  up 
of  every  variety  of  ingredients,  and  attended  with  every 
variety  of  incantation.  Which  spell  shall  prove  most 
powerful  ?  Abolition  or  anti-abolition — temperance  or 
intemperance — religion  or  impiety — laws  or  outlaws — 
increased  or  diminished  salaries  ?  All  these  subjects, 
and  a  thousand  others,  will  be  agitated,  and,  finally,  in 
one  shape  or  another,  find  a  footing  in  our  courts  of 
justice.  There  they  must  be  heard  and  determined ; 
and  can  any  man  who  looks  to  men  as  mortal,  and  to 
the  justice  of  the  country  as  co-extensive  with  the 
country,  and  contemporaneous  with  its  duration,  look 
to  the  crisis,  which  sooner  or  later  must  arrive,  with- 
out anxious  and  fearful  anticipations. 

We  remember  a  judge,  as  honorable  and  high-minded 
a  man  as  ever  sat  upon  the  bench,  who  had  exhausted 
his  private  fortune,  and  been  reduced  to  compara- 
tive starvation,  by  the  miserable  and  stinted  pittance 
which  the  laws  allowed ;  having  stated  that  one  of  the 
greatest  penalties  he  endured,  arose  from  his  seeing 
lawyers  at  the  bar  engaged  in  an  argument  before  him 

VOL.  I.— 21 


314  THE    FORUM. 

— jurors  on  the  panel — or  parties  to  a  suit — to  all  of 
whom  he  owed  debts,  that  he  could  not  at  once  dis- 
charge. "Now,"  said  he,  "all  of  these,  either  consider 
me  under  obligations  to  them,  and  expect  favor  or  in- 
dulgence, which  it  would  be  incompatible  with  my 
duty  to  grant ;  or,  if  I  wrong  them  in  this,  the  belief 
itself  renders  me  unhappy,  and  impairs  my  sense  of 
judicial  independence;  though  God  knows,  I  would 
beg  or  die,  before  I  would  knowingly  violate  my 
duty." 

This  is  a  painful  picture,  but  to  a  generous  mind,  is 
it  worse  than  the  other  besetments  to  which  we  have 
referred,  which  no  prudence,  or  economy,  or  skill,  can 
guard  against,  and  which  require,  as  Milton  says,  "  a 
dragon  watch,  with  wwenchanted  eye." 

The  only  cure  that  can  be  suggested  for  the  pros- 
pective evil,  is  that  which  we  trust  may  be  applied. 
It  has  so  turned  out,  whether  by  chance  or  popular 
wisdom,  that  just  and  meritorious  men  have  hitherto 
been  chosen  to  administer  the  laws ;  there  is  nothing  to 
prevent  their  continuance  during  life,  without  regard, 
therefore,  to  social  or  party  prejudices,  let  all  good  men 
unite  in  confirming  them  in  their  present  situation.  We 
know  what  we  have,  but  no  man  knows  what  we  might 
have ;  and  although  rotation  in  office,  is  a  favorite  doc- 
trine of  the  democracy,  heaven  forbid  that  it  should  ever 
be  extended  to  the  judiciary.  "  Old  judges  and  settled 
laws — new  judges  and  reform."  Bad  decisions  are 


THE    JUDICIARY. 

better  than  no  decisions,  and  variable  judgments  are 
worse  than  none;  for  they  leave  men  in  increased 
doubt  as  to  their  relative  or  respective  rights.  If  you 
change  the  judges  as  often  as  the  law  would  allow,  by 
the  time  they  are  familiar  with  their  duties,  and  at 
home  in  their  seats,  and  established  in  their  system, 
you  will  displace  them  for  new  men,  who  in  their  turn 
shall  give  place  to  others,  and  thus  produce  what  Ad- 
dison  calls  "  a  regular  confusion,"  from  which  nothing 
but  a  miracle  can  redeem  you,  "  and  miracles,"  says  a 
wise  man,  "  are  not  resorted  to  by  the  Almighty,  for 
the  purpose  of  curing  the  follies,  or  relieving  against 
the  vices  of  his  creatures." 

It  may  be  said,  that  in  Pennsylvania  we  have  no 
limit  of  age,  as  they  have  in  New  York,  and  that  the 
course  suggested  may  be  attended  with  disadvantage 
in  the  administration  of  justice,  by  continuing  judges 
on  the  bench  long  after  their  intellectual  vigor  and  legal 
competency  may  have  been  impaired.  Chancellor 
Kent  lived  until  he  was  upwards  of  eighty,  in  the  full 
possession  of  all  his  faculties  and  all  his  varied  and 
extensive  learning,  after  having  been  legislated  out 
of  his  office  of  Chief  Justice  of  the  Supreme  Court  of 
New  York,  upon  arriving  at  the  age  of  sixty.  Chief 
Justice  Marshall  of  the  Supreme  Court  of  the  United 
States,  was  about  the  same  age  at  the  time  of  his 
death,  and  no  man  ever  imagined  that  his  great  mind, 
or  the  soundness  of  his  judgment,  had  in  the  least 


316  THE    FORUM. 

deteriorated.  Most  of  the  ablest  judges  of  England 
were  the  eldest  judges ;  and  in  short,  without  entering 
into  an  elaborate  argument  upon  this  subject,  it  may 
be  said,  that  advanced  age  is  far  from  being  indicative 
of  unfitness  for  a  judicial  post ;  but  upon  the  contrary, 
it  bears  with  it  generally  an  experience  and  a  dignity, 
which  would  rather  recommend  it  to  a  judicious  prefer- 
ence. There  may  be,  to  be  sure,  exceptions — and  so 
there  may  be  at  fifty,  as  well  as  at  eighty ;  but  mere 

* 

exceptions,  scarcely  furnish  a  sufficient  ground  for 
general  exclusion  or  proscription.  When  it  happens 
that  age,  disease,  or  infirmity  of  any  kind,  unfits  a 
judge  for  the  performance  of  his  duty,  he  might  be 
placed  upon  a  retiring  list,  in  order  to  make  room  for 
a  more  efficient  successor.  True,  there  is  no  provision 
by  law  for  pensions  to  judges  in  such  circumstances, 
but  there  is  much  reason  why  there  should  be.  Hu- 
manity and  justice  would  both  seem  to  require  it. 
The  review  of  "  Lord  Brougham's  Speech  on  the  Re- 
form of  the  Law,"  from  which  the  following  passage  is 
extracted,  expresses  upon  this  subject,  the  ideas  which 
we  entertain : — * 

"  The  faithful  servant  of  the  State,  who  has  devoted  his  best  days 
to  the  service  of  his  country,  should,  when  ambition  ceases  to  be  a 
virtue,  be  invited  to  his  repose.  The  few  remaining  years  of  a  valu- 

*  Brown's  Review  of  Lord  Brougham's  speech  on  the  State  of  the  Law, 
published  in  1828. 


THE    JUDICIARY. 

able  and  venerable  life,  instead  of  being  exhausted  in  unavailing 
efforts  to  support  the  burthen  which  was  the  glory  of  past  days, 
should  be  cherished  and  sustained  by  the  grateful  munificence  of  the 
nation  he  has  blessed ;  thus,  the  infirmities  of  the  great  may  be  con- 
cealed, the  benefit  of  their  example  secured,  and  the  honor  of  the 
people  vindicated.  Again;  rewards  of  this  description  might  be 
regulated  by  the  age  and  condition  of  the  judge,  without  invidious 
distinction,  and  we  should  thus  be  spared  the  distressing  spectacle 
sometimes  exhibited,  of  a  plain  and  palpable  struggle  between  time 
and  eternity — between  the  grave  and  the  judgment  seat. 

"  To  resign  those  honors,  which  the  hands  are  too  feeble  to  grasp, 
and  the  mind  too  infirm  to  enjoy,  would  scarcely  require  a  groan : 
but  to  resign  and  starve — to  relinquish  station  and  the  means  of  life 
together,  is  a  penalty  far  beyond  what  human  nature  will  voluntarily 
encounter.  Hence  the  administration  of  justice  may,  in  some  in- 
stances, become  a  by-word  and  reproach,  and  the  fortunes,  and  lib- 
erties, and  lives  of  the  community,  are  totally  jeoparded,  strange  as 
it  may  seem,  for  the  purpose  of  subserving  a  penurious  policy,  and 
avoiding  the  horrors  of  increased  exposure.  Better,  much  better, 
would  it  be,  that  the  public  coffers  should  be  drained,  than  that  the 
judicial  character  should  be  thus  degraded,  and  the  rights  of  the 
community  thus  despised. 

"  When  ancient  senators  pointed  to  their  poverty  as  an  evidence 
at  once  of  their  frugality  and  incorruptibility — even  then  the  grati- 
tude of  their  countrymen  repaid  them  for  their  privations  and  their 
sacrifices,  by  honors  and  triumphs  which  the  wealth  of  Croesus  was 
too  poor  to  buy.  But  the  times  are  changed,  and  honors  are  now 
degraded  by  an  ostensible  pecuniary  equivalent,  which,  while  it  robs 
the  recipients  of  all  glory,  consigns  them  to  actual  misery.  We  are 
told,  forsooth,  that  he  is  paid;  not  upon  the  principle  that  the 
grateful  mind  by  owing,  owes  not,  but  upon  the  footing  of  mere 
purchase  and  sale.  In  truth,  he  never  can  be  paid  for  the  benefits 
that  he  confers  on  his  country,  or  the  privations  to  which  he  is  sub- 


318  THE    FORUM. 

jected  in  the  fulfilment  of  the  highest  of  all  public  trusts — the  faith- 
ful and  the  fearless  administration  of  the  laws. 

"  We  have  pensioned  and  half-pay  officers,  in  the  army  and  navy — 
we  have  modifications  of  pay,  regulated  by  being  in  or  out  of  actual 
service;  and  no  reason  can  be  conceived,  why  similar  provisions 
should  not  be  adopted  in  regard  to  the  Federal  and  State  Judiciary. 
Certainly  there  is  nothing  in  the  character  of  military  services,  cal- 
culated to  impart  to  them  a  higher  claim  to  liberal  consideration, 
than  that  which  may  be  fairly  challenged  by  the  majesty  of  the 
laws,  and  the  administration  of  the  justice  of  the  country." 

We  are  aware,  notwithstanding  what  has  been  said, 
that  there  may  be  objections  to  retiring  pensions, 
even  with  any  modifications  that  can  be  suggested ; 
but  certainly,  there  can  be  no  available  objections  to 
the  enlargement  of  salaries.  In  adopting  this  course, 
you  enable  a  judge  not  only  to  live  in  becoming  decency 
and  comfort,  but  to  lay  up,  by  a  prudent  economy,  what 
may  protect  his  family  from  want,  after  he  has  been 
gathered  to  his  fathers.  The  judicial  salaries  have 
borne  no  sort  of  proportion  to  the  progressive  busi- 
ness, increase,  and  wealth  of  the  State.  If  the  judges 
are  what  they  should  be,  it  is  perfectly  clear  the  com- 
pensation for  their  services  is  not  what  it  should  be ; 
but  if  we  are  to  adopt  the  notion,  that  the  worth  of  a 
thing  is  what  it  will  bring — -judging  from  their  salaries, 
the  judiciary  are  of  very  little  value.  If  this  be  so, 
get  rid  of  them  5  if  it  be  not  so,  pay  them — at  least, 
sufficiently,  to  prevent  beggary  to  themselves,  and  dis- 


THE    JUDICIARY. 

honor  to  the  State.     Tully,  truly  observes,  "FORTES 

ET   SAPIENTES   VIROS,    NON    PR.EMIA,    SEQUI    <SOLERE'    RECTE 

FACTORUM  QUAM  iPSJE  RECTE  FACIA."  The  great  and 
the  wise  perform  great  actions,  not  so  much  for  the 
rewards  attending  them,  as  on  account  of  their  intrin- 
sic excellence.  Still,  the  great  and  the  wise,  in  order 
to  the  performance  of  great  actions,  or  high  public 
duties,  must  LIVE  ;  and  it  does  not  become  a  nation  or 
a  State,  to  exhaust  all  the  learning  and  labours  of  her 
faithful  functionaries,  and  then  to  repay  them  with  a 

MAXIM  OR  A  PROVERB. 


CHAPTER  IV. 

GALLERY  OF  PORTRAITS  —  THOMAS  M'KEAN,  L.L.D.       v 

IT  is  said  by  a  learned  and  distinguished  writer, 
"  that  to  trace  a  single  word  through  all  its  modifica- 
tions, varieties,  and  diversities  of  use,  from  its  origin 
to  the  present  time,  would  be  superior,  in  point  of 
interest  and  utility,  to  the  description  of  a  campaign."* 
If  this  be  so,  what  must  be  the  interest,  properly  con- 
sidered, of  the  lives  of  illustrious  men,  embracing  their 
intellectual,  social,  moral,  professional,  or  official  cha- 
racter, the  value  of  their  services,  the  benefit  of  their 
example  to  their  cotemporaries,  and  the  lasting  bene- 
fits conferred  by  them  upon  posterity. 

History  is  distracted  by  a  multiplicity  of  diversified 
events,  and  diffused  over  men  and  natures.  Biography 
concentrates  the  mind  upon  a  single  object,  and  brings, 

*  Trench,  on  Words. 


THOMAS    M'KEAN.  321 

as  it  were,  the  hearts  of  men  into  a  direct  sympathetic 
communion  with  each  other. 

We  are  aware,  that  when  the  life  portrayed  is  of 
itself  embellished  and  rendered  redolent  by  rare  moral 
and  social  qualities,  and  when  the  impression  of  those 
qualities  remains  fresh  in  the  mind  and  affections  of 
the  public,  biography  languishes  under  the  weight  of 
its  task,  and  often  not  only  falls  short  of  the  expecta- 
tion of  the  community,  but  of  the  merits  of  the  indi- 
viduals designed  to  be  commemorated  and  embalmed. 

A  portrait  from  life,  or  a  cast  taken  after  death, 
is  tested  by  traditions,  recent  recollections,  and  rigid 
comparison,  and  its  defects  or  faults  are  readily  per- 
ceived, and  unsparingly  and  deservedly  condemned. 

It  is  not  therefore  remarkable  that  the  sketches  of 
eminent  men,  however  ably  and  skilfully  drawn,  fre- 
quently degrade  rather  than  exalt  the  character  in- 
tended to  be  exhibited.  They  may  magnify  the  mean, 
but  invariably  diminish  the  great. 

The  lives  of  all  who  have  lived  during  our  time  have 
held  a  higher  place  in  our  estimate,  when  left  to  our 
own  direct  interpretation  and  judgment  of  their  actions 
and  motives,  than  when  presented  to  us  through  the 
medium  of  the  description  of  others. 

But,  without  dwelling  upon  the  difficulties  of  the 
task  here  assumed,  or  excusing  by  anticipation  its 
imperfect  performance,  we  proceed  at  once  to  the  dis- 
charge of  our  duty,  which  is  to  pay  a  grateful  and 


322  THE  FORUM. 

sympathetic  tribute  of  enduring  reverence  to  departed 
worth.  In  approaching  the  consideration  of  the  judi- 
ciary of  the  several  courts  created  by  the  constitution 
and  the  laws  of  the  Federal  and  State  governments,  it 
would  be  unnecessary,  if  not  useless,  to  bestow  any 
attention  upon  the  origin,  jurisdiction,  or  powers  of 
these  tribunals,  as  they  are  exhibited  on  the  face  of  the 
statutes,  and  are  so  familiar  to  all,  and  particularly  to  the 
members  of  the  bar,  as  to  render  a  studied  and  detailed 
exposition  of  them  a  matter  of  supererogation.  This  is 
not  a  treatise  upon  the  laws,  or  upon  the  organization 
of  the  courts  of  justice,  but  upon  the  various  modes  of 
administering  the  law,  and  the  functionaries  through 
whose  official  agency  they  are  judicially  administered. 
The  laws  stand,  and  we  trust  ever  will  stand,  and  they 
speak  for  themselves.  The  judges  have  passed,  or  are 
passing  away,  and  the  "places  that  once  knew  them 
shall  know  them  no  more." 

As  TIME  reconciles  or  controls  conflicting  DIGNITIES, 
we  have,  instead  of  entering  upon  the  question  of  pre- 
cedency between  the  judges  of  the  Federal  and  State 
courts,  thought  proper  to  present  them  in  the  order  of 
their  appointments,  leaving  their  relative  or  compara- 
tive official  merits,  to  the  judgment  of  others.  With- 
out further  preface  we  pass  then  to  the  first  chief 
justice,  after  the  Declaration  of  Independence. 


THOMAS    M'KEAN.     '.  323 


THOMAS   M'KEAN, 


FIRST  CHIEF  JUSTICE  OF  THE  SUPREME  COURT  OF  PENNSYLVANIA. 
BORN,  1734— APPOINTED,  1777— DIED,  1817. 


Thomas  M'Kean,  one  of  the  illustrious  signers  of 
the  Declaration  of  Independence,  was  the  first  chief 
justice  of  the  Supreme  Court  of  Pennsylvania,  after 
the  Declaration  of  Independence.  He  was  appointed 
to  that  post  on  the  28th  of  July,  1777,  and  continued 
therein  until  the  year  1799,  when  he  was  elected 
governor  of  the  commonwealth,  and  was  succeeded  as 
chief  justice  by  Edward  Shippen,  who,  from  June  31st, 
1791,  until  the  resignation  of  Mr.  M'Kean,  had  been 
an  associate  judge. 

JUDGE  SHIPPEN,  whom,  having  referred  to,  we  must, 
in  passing,  briefly  notice,  was  the  son  of  Edward  Ship- 
pen,  merchant,  and  Sarah  Plumley,  and  was  born  on 
the  6th  of  February,  1 729,  at  Philadelphia.  The  father 
was  one  of  the  considerable  men  of  the  province  of 
Pennsylvania;  was  active  in  the  erection  of  Nassau 
Hall,  (Princeton,)  and  also  promoted  the  founding  of 
the  University  of  Pennsylvania.  He  was  also  a  judge 
under  the  British  and  State  governments ;  founder  of 
Shippensburg ;  and,  though  very  old  at  the  time,  was 
far  from  inactive  through  our  revolutionary  struggle. 
Edward  Shippen,  Jun.,  the  subject  of  this  notice,  was 
sent  to  London  for  legal  education  at  the  Middle 


324  THE  FORUM. 

Temple;  and,  upon  his  return  to  Philadelphia,  was, 
on  the  20th  of  September,  1750,  upon  producing  his 
certificate  of  being  an  utter  barrister*  of  the  Society 
of  the  Middle  Temple,  admitted  to  practice  in  the  Su- 
preme Court  of  his  native  State.  He  was  a  man  of  great 
learning,  and  a  safe  and  excellent  judge,  possessed 
of  most  valuable  experience,  having  been  many  years 
in  extensive  practice,  and  having  also  been  upon  the 
'bench  of  the  Supreme  Court,  from  the  7th'  of  May, 
1791,  until  he  became  chief  justice,  in  1799,  upon  the 
resignation  of  Chief  Justice  M'Kean. 

Chief  Justice  M'Kean,  Judge  Shippen,  and  others 
of  their  time,  were  not  only  well  founded  in  the  prin- 

*  The  importance  of  legal  education  at  either  of  the  Temples  in 
London  has  been  always  looked  upon  with  great  respect,  and,  we  think, 
overrated.  It  depended  altogether  on  the  habits  of  the  student.  If 
industrious  and  assiduous,  he  came  forth  much  improved ;  but  he  was 
left  entirely  to  himself,  benefited  by  no  prelections  from  eminent  lawyers, 
or  indeed  from  any  one.  He  enjoyed  a  sort  of  legal  atmosphere,  and 
that  may  be  said  to  have  been  all.  Mr.  Rawle,  who  was  a  student  of  the 
Inner  Temple,  used  to  say,  that  all  that  was  necessary,  in  order  to  a 
certificate  of  "  utter  barrister,"  was  to  prove  that  you  had  eaten  your 
dinner  regularly  during  the  appointed  terms.  After  this,  what  becomes 
of  the  slander  upon  the  mode  of  examination  for  admission,  said  to  be 
pursued  in  some  of  our  Western  States.  Thus : 

Examiner.  Do  you  understand  the  game  of  brag  ?  Can  you  make  a 
mint  julep  ?  Can  you  drink  it  ? 

Upon  these  three  questions  being  answered  affirmatively,  the  candidate 
is  considered  abundantly  qualified,  and  is  admitted  to  practice,  as  a  mat- 
ter of  course.  We  can  conceive  of  a  bar  for  which  these  qualifications 
would  fit  a  student  exceedingly  well — but  it  is  a  tavern  bar. 


THOMAS    M'KEAN.  325 

ciples  of  law,  but  they  were  familiar  with  the  minutest 
points  of  practice.  Several  of  them  had  been  clerks 
or  prothonotaries,'  and  knew  all  the  duties  of  the  office 
— the  forms  of  writs,  the  returns,  pleadings,  rules, 
exceptions,  and  the  whole  course  of  proceedings — 
certainly  a  most  important  branch  of  knowledge,  as 
a  want  of  knowledge  of  such  practical  details  is  very 
apt,  as  we  have  known,  to  embarrass  a  judge,  and 
lead  to  misunderstanding  and  confusion.  They  may 
be  deemed  small  matters,  but  they  have  an  effect  upon 
judicial  reputation,  for  a  judge  is  expected  to  know 
everything.  A  Jack  Tar  is  reported  to  have  despised 
the  knowledge  of  the  chief  justice  of  the  King's  Bench, 
because  he  did  not  know  what  was  meant  by  the  nau- 
tical terms,  "  Abaft  the  binnacle,  and  douse  glim !" 
That  might  have  been  excusable,  but  not  so  the  want 
of  knowledge  of  what  appertains  to  a  man's  own  pecu- 
liar profession,  or  sphere  of  life. 

When  Judge  Shippen  became  chief  justice,  he  was 
seventy  years  old ;  not  a  remarkable  age,  considered 
in  reference  to  many  of  the  judges  of  England,  and  who, 
at  that  time  of  life,  would  seem,  from  being  called 
junior  judges,  to  be  only  in  their  prime ;  but,  apart 
from  that,  Judge  Shippen  was  of  a  long-lived  family, 
of  great  vigor  of  constitution,  and  fully  retained  his 
mental  and  physical  powers  until  a  very  short  time 
before  his  death.  He  was  an  agreeable,  unassuming, 
and  prepossessing  gentleman,  of  a  kind  heart,  and  dig- 


326  THE  FORUM. 

nified  personal  appearance,*  and  he  was  beloved  and 
venerated  by  all  who  knew  him.  In  December,  1805, 
feeling  the  infirmities  of  years  coming  over  him,  and 
admonished  by  his  own  reflections  of  the  importance 
of  some  interval  between  the  active  concerns  of  this 
life  and  a  due  preparation  for  a  better,  he  resigned  his 
situation  as  Chief  Justice ;  and  on  the  sixteenth  day 
of  April,  1806,  ripe  in  years  and  honors,  and  full  of 
faith  in  his  Redeemer,  surrendered  his  soul  unto  God 
who  gave  it. 

"  Nomen  in  exemplum  servabimus  sevo." 

•  -* '' ' 
But  to  return  to  Mr.  M'Kean.     He  was  born  in 

Chester  county,  Pennsylvania,  on  the  19th  day  of 
March,  1757.  He  was  of  Irish  extraction;  the  son 
of  William  M'Kean,  who  married  a  lady  by  the  name 
of  Letitia  Finney.  He  studied  law  in  the  office  of 
David  Finney,  a  maternal  uncle  and  lawyer  of  note,  at 
Newcastle,  and  was  admitted  to  practice  in  the  Supreme 
Court,  in  the  year  1757;  some  years  prior  to  which, 
he  had  been  a  clerk  of  the  prothonotary,  and  afterwards 
prothonotary  and  register  of  Newcastle.  Subsequently, 
in  1762,  he  was  selected  to  revise  the  laws;  and 
eventually,  as  has  been  said,  became  chief  justice,  and 
finally  governor,  of  Pennsylvania,  in  which  last  office 
he  continued  for  three  terms. 

*  There  is  an  excellent  portrait  of  him  in  the  Law  Library,  a  copy 
by  Xagle,  from  an  original  by  Stewart,  in  the  possession  of  Judge  Ship- 
pen's  family. 


THOMAS    M'KEAN.  327 

Judge  M'Kean,  among  those  who  best  knew  hfm, 
was  always  considered  a  sound  lawyer  and  an  upright 
judge.  He,  however,  although  theoretically  attached 
to  the  democracy  of  the  time,  was  somewhat  aristo- 
cratic in  his  practice,  he  was  a  stern  and  an  arbitrary 
man,  still  one  quite  susceptible  of  flattery,  fond  of  offi- 
cial display,  and  by  no  means  averse  to  the  blandish- 
ments of  titles.  On  this  subject  it  is  related  of  him, 
that  shortly  after  his  appointment,  a  petition  was  pre- 
sented to  him,  directed  to  the  Right  Honorable  Thomas 
M'Kean,  Esq.,  Lord  Chief  Justice  of  Pennsylvania, 
upon  which  he  very  complacently  observed :  "  These 
are,  perhaps,  more  titles  than  I  can  fairly  lay  claim  to, 
but  at  all  events  the  petitioner  has  erred  on  the  right 
side."  In  opening  the  session  of  his  courts,  it  was 
done  with  great  ceremony  and  form,  and  the  Chief 
Justice  held  all  his  attendants  to  the  most  rigid  observ- 
ance of  respectful  duty.  The  judges,  it  is  true,  had 
thrown  off  their  wigs,  but  they  nevertheless  retained 
the  robes  and  such  other  appliances,  as  probably  in 
their  opinion,  contributed  to  make  "  ambition  virtue." 
In  taking  their  seats  at  the  opening  of  the  court  in  the 
city,  as  well  as  in  the  counties — with  all  their  professed 
republican  principles — they  followed  and  imitated,  at 
no  great  distance,  the  example  of  the  judges  of  the 
English  Court  of  King's  Bench.  The  sheriff,  in  all 
his  pomp,  together  with  the  tip-staves  and  attendants, 
assembled  at  the  commencement  of  the  term,  and 


328  THE  FORUM. 

swelled  the  retinue  of  the  Chief  Justice  and  his  asso- 
ciates, as  they  proceeded  to  assume  their  respective 
places  upon  the  judicial  seat.  We  mention  these  cere- 
monies, not  to  complain  of  them,  but  rather  to  show, 
that  it  was  far  easier  to  cast  off  all  allegiance  to  the 
mother  country,  than  altogether  to  abandon  or  renounce 
those  fashions  or  follies  which  were  portions  of  our  in- 
heritance. 

Chief  Justice  M'Kean,  though  always  deemed  a  very 
able  lawyer,  and  a  man  of  inflexible  honesty;  was  still 
a  man  of  strong  prejudices,  jealous  of  his  authority, 
and  rough  and  overbearing  in  its  maintenance.  If 
the  advocates  of  his  time  had  not  been  men  of  ex- 
alted and  unbending  principles,  his  sternness  of  judi- 
cial deportment  would  have  exercised  a  most  deplor- 
able influence  upon  the  independence  of  the  bar,  but 
the  aristocracy  of  genius  can  neither  be  awed  nor  sub- 
dued, and  while  its  possessor  cannot  but  feel  conscious 
of  its  value,  it  also  secures  the  unwilling  homage  of 
those,  however  lofty  may  be  their  official  position,  who 
would  presumptuously  venture  to  attempt  to  put  it 
into  "circumscription  and  confine."  A  truly  great 
man  can  always  measure  himself,  and  measure  others, 
too,  and  whatever  external  tribute  he  may  pay  to  offi- 
cial dignity,  he  never  forgets  his  own.  The  forms  and 
ceremonies  of  courts  enjoin  reverence  to  the  sovereign, 
yet  it  has  not  unfrequently  happened,  that  even  there, 
in  the  language  of  Scott,  "  the  immortal  bows  to  the 


THOMAS    M'KEAN.  329 

mortal."  Nature  is  so  true  to  herself,  that  she  neve? 
doffs  her  cap  to  artificial  greatness,  the  head  may 
sometimes  bend,  but  the  heart  always  holds  its  place. 

We  have  said  that  Judge  M'Kean  was  a  stern  and 
despotic  man;  as  an  instance  of  it,  it  is  related  of  him, 
that  while  Governeur  Morris  was  addressing  him,  some 
remark  that  he  made  gave  offence  to  his  Honor,  who, 
turning  to  the  counsel,  somewhat  roughly,  commanded 
him  to  take  his  seat.  Mr.  Morris,  who  was  a  man  of 
lofty  spirit,  replied,  "  If,  sir,  you  do  not  wish  to  hear 
me,  I  will  cease  speaking ;  but  whether  I  shall  sit  or 
stand,  depends  upon  my  own  convenience,  and  I  prefer 
standing" 

At  another  time,  Mr.  Lewis,  who  was  also  a  firm 
man,  and  had,  for  the  most  part,  great  influence  with 
the  Court,  prefaced  a  motion  which  he  was  about 
to  make,  by  saying,  that  the  subject  was  so  uncommon, 
that  he  scarcely  knew  in  what  form  to  present  the  ap- 
plication; to  which  the  judge  harshly  answered,  "You 
have  been  more  than  twenty  years  at  the  bar,  Sir,  and 
if  you  don't  understand  how  to  make  a  motion,  you  had 
better  consult  your  books,  and  learn." 

It  need  hardly  be  remarked,  whatever  may  have 
been  his  deficiency  in  civility,  that  he  was  a  judge  of 
great  decision  and  force  of  character.  During  the 
course  of  his  long  judicial  life,  he  never  wavered  in 
what  his  duty  seemed  to  require. 

There  are  many  instances  exemplifying  his  inflexi- 
VOL.  i.— 22 


330  THE  FORUM. 

bility  in  the  administration  of  justice,  but  to  refer  to 
them  all  would  be  to  occupy  too  much  space.  Two  or 
three  cases  will  serve  to  furnish  an  accurate  under- 
standing of  his  supercilious  mode  of  discharging  his 
official  duty. 

In  1778,  he  issued  a  warrant  against  Colonel  Robert 
L.  Hooper,  a  deputy  quarter-master,  charging  him  with 
having  libelled  the  magistrates  of  Pennsylvania,  in  a 
letter  to  Governeur  Morris,  and  commanding  the  sheriff 
of  Northampton  county  to  bring  the  colonel  before  the 
chief  justice  at  Yorktown.  Colonel  Hooper  waited 
upon  General  Greene,  at  that  time  next  in  command 
to  Washington,  to  know  whether  the  circumstances  of 
the  army  would  allow  his  absence.  General  Greene 
wrote  to  Chief  Justice  M'Kean,  from  Valley  Forge 
encampment,  3d  June,  1778,  stating  that,  as  the  army 
was  just  upon  the  wing,  he  could  not  consent  to  Colonel 
Hooper  being  absent,  as  there  was  no  one  to  fill  his 
place ;  and  requesting  that  Hooper  might  be  permitted 
to  enter  into  a  recognizance  to  appear  at  any  court 
where  he  was  legally  answerable.  This  letter  caused 
the  chief  justice  to  flare  up,  and  produced  the  following 
authoritative  and  peremptory  reply : — 


"Yorktown,  June  9th,  17T8. 

"  SIB  : — I  have  just  now  received  your  favor  of  the  3d  instant,  and 
am  not  a  little  surprised  that  the  sheriff  of  Northampton  county 
should  have  permitted  Colonel  Kobert  L.  Hooper,  after  he  was 


THOMAS    M'KEAN.  331 

arrested  by  virtue  of  my  precept,  to  wait  upon  you,  until  he  had 
appeared  before  me. 

"  You  say,  sir,  '  Colonel  Hooper  waited  upon  me  to  communicate 

x  .  ' 

his  situation,  and  to  know  if  the  circumstances  of  the  army  would 
admit  of  his  absence ;  but,  as  the  army  is  just  upon  the  wing,  and 
part  of  it  will,  in  all  probability,  march  through  his  district,  I  could 
not,  without  great  necessity,  consent  to  his  being  absent,  as  there  is 
no  other  person  that  can  give  the  necessary  aid  upon  this  occasion.' 

"  I  do  not  think,  sir,  that  the  absence,  sickness,  or  even  death  of 
Mr.  Hooper  could  be  attended  with  such  a  consequence,  that  no 
other  person  could  be  found  who  could  give  the  necessary  aid  upon 
this  occasion;  but  what  attracts  my  attention  the  most,  is  your 
observation  that  you  cannot,  without  great  necessity,  consent  to  his 
being  absent.  As  to  that,  sir,  I  shall  not  ask  your  consent,  nor  that 
of  any  other  person,  in  or  out  of  the  army,  whether  my  precept  shall 
be  obeyed  or  not  in  Pennsylvania. 

"  The  warrant  for  the  arrest  of  Mr.  Hooper  being  special,  no  other 
magistrate  can  take  cognizance  thereof  but  myself.  The  mode  you 
propose,  of  giving  bail,  cannot  be  adopted,  for  many  reasons. 

"  I  should  be  very  sorry  to  find  that  the  execution  of  criminal  law 
should  impede  the  operations  of  the  army,  in  any  instance ;  but 
much  more  so  to  find  the  latter  impede  the  former. 
"  I  am,  sir,  with  much  respect, 

"  Your  most  obedient,  humble  servant, 

"THOMAS  M'KEAN. 

"  Major-General  Greene." 


In  the  case  of  Respublica  v.  The  Chevalier  de 
Longchamps,  he  manifests  towards  the  defendant  as 
much  severity  as  he  does  obsequiousness  towards  "  our 
great  and  good  ally,"  the  king  of  France. 


332  THE  FORUM. 

The  defendant,  a  count  of  France,  was  indicted  for 
having,  on  the  17th  of  May,  1784,  at  the  dwelling  of 
the  French  minister  plenipotentiary,  in  the  presence 
of  Francis  Barbe  Marbois,  unlawfully  threatened  and 
menaced  bodily  harm  and  violence  to  the  person  of 
said  Francis  Barbe  Marbois,  he  being  consul-general 
of  France  to  the  United  States,  and  under  the  protec- 
tion of  the  law  of  nations  and  this  commonwealth; 
and  that  afterwards,  on  the  19th  of  May,  that  he  made 
an  assault  upon  and  did  strike  said  Francis  Barbe 
Marbois,  in  violation  of  the  laws,  &c. 

The  defendant  pleaded  not  guilty. 

Under  the  first  count,  it  was  proved  that  the  defend- 
ant said  to  Marbois,  "  Je  vous  dishonnerera  PoliQon, 
Coquin ;"  and  repeated  the  words. 

In  support  of  the  second  count,  it  appeared  that 
he  called  Marbois  a  blackguard,  in  the  public  streets, 
and  struck  the  cane  of  Marbois,  upon  which  Marbois 
used  his  stick  with  some  severity  in  return.  The 
cause  of  the  attack  was  the  refusal  of  Marbois  to 
authenticate  certain  documents  for  the  defendant,  who 
had  been  an  officer  in  the  French  army. 

The  defendant  was  convicted,  and  M'Kean,  C.  J., 
pronounced  the  following  sentence : — 

"  You  have  been  guilty  of  an  atrocious  violation  of  the  law  of 
nations.  You  have  grossly  insulted  gentlemen,  the  peculiar  objects 
of  this  law,  (gentlemen  of  amiable  characters,  and  highly  esteemed 


THOMAS    M'KEAN.  333 

by  the  government  of  this  State,)  in  a  most  wanton  and  unprovoked 
manner ;  and  it  is  now  the  interest,  as  well  as  duty,  of  the  govern- 
ment, to  animadvert  upon  your  conduct  with  a  becoming  severity ; 
such  a  severity  as  may  tend  to  reform  yourself,  to  deter  others  from 
the  commission  of  the  like  crime,  preserve  the  honor  of  the  State, 
and  maintain  peace  with  our  great  and  good  ally,  and  the  world. 

"  A  wrong  opinion  has  been  entertained  concerning  the  conduct 
of  Lord  Chief  Justice  Holt,  and  the  Court  of  King's  Bench,  in  Eng- 
land, in  the  noted  case  of  the  Russian  ambassador.  They  detained 
the  offenders  after  conviction,  in  prison,  from  term  to  term,  until  the 
Czar  Peter  was  satisfied,  without  ever  proceeding  to  judgment;  and 
from  this  it  has  been  inferred,  that  the  Court  doubted  whether  they 
could  inflict  any  punishment  for  an  infraction  of  the  law  of  nations. 
But  this  was  not  the  reason.  The  court  never  doubted  that  the  law 
of  nations  formed  part  of  the  law  of  England,  and  that  a  violation 
of  this  general  law  could  be  punished  by  them ;  but  no  punishment 
less  than  death  would  have  been  thought  by  the  czar  an  adequate 
reparation  for  the  arrest  of  his  ambassador.  This  punishment  they 
could  not  inflict,  and  such  a  sentence  as  they  could  have  given  he 
might  have  thought  a  fresh  insult  Another  expedient  was  therefore 
fallen  upon.  However,  the  princes  of  the  world  at  this  day  are  more 
enlightened,  and  do  not  require  impracticable  nor  unreasonable  repa- 
ration for  injuries  of  this  kind. 

"  Upon  the  whole,  the  Court,  after  a  most  attentive  consideration 
of  every  circumstance  in  this  case,  do  award,  and  direct  me  to  pro- 
nounce the  following  sentence : — 

"  That  you  pay  a  fine  of  one  hundred  French  crowns  to  the  Com- 
monwealth; that  you  be  imprisoned  until  the  fourth  day  of  July,  1786, 
which  will  make  a  little  more  than  two  years  imprisonment  in  the 
whole ;  that  you  then  give  good  security  to  keep  the  peace,  and  be 
of  good  behaviour  to  all  public  ministers,  secretaries  to  embassies, 
and  consuls,  as  well  as  to  all  the  liege  people  of  Pennsylvania,  for 


334  THE  FORUM. 

the  space  of  seven  years,  by  entering  into  a  recognizance  yourself, 
in  one  thousand  pounds,  and  two  securities  in  five  hundred  each ; 
that  you  pay  the  costs  of  this  prosecution,  and  remain  committed 
until  this  sentence  be  complied  with." 

Again,  in  the  case  of  Respublica  v.  Oswald,*  he 
showed  those  stern  qualities  in  a  high  degree,  and  they 
were  even  rendered  more  conspicuous,  from  the  con- 
trast presented  by  the  conduct  of  Judge  Bryan,  who 
seemed  to  have  trimmed  his  sails  rather  closely  to  the 
"  popular  gale." 

The  case  was  this :— On  the  12th  of  July,  1788, 
Mr.  Lewis  moved  for  a  rule  to  show  cause,  why  an 
attachment  should  not  issue  for  the  publication  of  a 
libel  by  the  defendant,  during  the  pending  of  a  suit 
of  Browne  v,  Oswald.  The  facts  out  of  which  this 
application  arose,  stood  thus :  Oswald  having  inserted 
in  his  newspaper,  "The  Independent  Gazette,"  seve- 
ral anonymous  pieces  against  the  character  of  Andrew 
Browne,  the  master  of  a  female  academy  in  the  city 
of  Philadelphia,  Browne  applied  to  him,  to  give  up 
the  authors  of  those  pieces,  but  being  refused  that 
satisfaction,  he  brought  an  action  for  libel  against 
Oswald,  returnable  into  the  Supreme  Court,  on  the 
second  day  of  July,  and  therein  demanded  bail  for 
£1000.  Previously  to  the  return  day  of  the  writ,  the 
question  of  bail  being  brought,  by  citation,  before  Mr. 
Justice  Bryan,  at  his  chambers,  the  judge,  on  a  full 

*  1  Dallas's  E.,  319. 


THOMAS    M'KEAN.  335 

hearing  of  the  cause  of  action,  in  the  presence  of  both 
the  parties,  ordered  the  defendant  to  be  discharged  on 
common  bail ;  and  the  plaintiff  appealed  from  this  order 
to  the  Court.  Afterwards,  on  the  first  day  of  July, 
Oswald  published,  under  his  own  signature,  an  address 
to  the  public,  which  contained  a  narrative  of  these  pro- 
ceedings, the  following  passages  of  which  were  the 
grounds  of  this  motion : — 

"  Had  Mr.  Browne  pursued  me  in  this  line,  without  loss  of  time, 
agreeably  to  his  lawyer's  letter,  I  should  not  have  supposed  it  extra- 
ordinary; but  to  arrest  me  the  moment  the  federal  intelligence  came 
to  hand,  indicated  that  the  commencement  of  this  suit  was  not  so 
much  the  child  of  his  own  fancy,  as  it  has  been  probably  dictated 
to  and  urged  on  him  by  others,  whose  sentiments  upon  the  new  con- 
stitution have  not,  in  every  respect,  coincided  with  mine.  In  fact,  it 
was  my  idea  in  the  first  progress  of  the  business,  that  Mr.  Browne 
was  merely  the  hand-maid  of  some  of  my  enemies  among  the  fede- 
ralists ;  and  in  this  class  I  must  rank  his  great  patron,  Dr.  Kush, 
(whose  brother  is  a  Judge  of  the  Supreme  Court.)  I  think  Mr. 
Browne's  conduct  has  since  confirmed  the  idea  beyond  a  doubt. 
Enemies  I  have  had  in  the  legal  profession,  and  it  may,  perhaps,  add 
to  the  hopes  of  malignity,  that  this  action  is  instituted  in  the  Su- 
preme Court  of  Pennsylvania ;  however,  if  former  prejudices  should 
be  found  to  operate  against  me  on  the  bench,  it  is  with  a  jury  of  my 
country,  properly  elected  and  impannelled,  a  jury  of  freemen  and 
independent  citizens,  I  must  rest  the  suit.  I  have  escaped  the  jaws 
of  persecution  through  this  channel,  on  certain  memorable  occasions, 
and  hope  I  shall  never  be  a  sufferer,  let  the  blast  of  faction  blow 
with  all  its  furies. 

"  The  doctrine  of  libel  being  a  doctrine  incompatible  with  law  and 


336  THE  FORUM. 

liberty,  and  at  once  destructive  of  the  privileges  of  a  free  country, 
in  the  communication  of  our  thoughts,  has  not  hitherto  gained  any 
footing  in  Pennsylvania ;  and  the  vile  measures  formerly  taken  to  lay 
me  by  the  heels  on  this  subject,  only  brought  down  obloquy  upon  the 
conductors  themselves.  I  may  well  suppose  the  same  love  of  liberty  yet 
pervades  my  fellow-citizens,  and  that  they  will  not  allow  the  freedom 
of  the  press  to  be  violated  upon  any  refined  pretence  which  oppres- 
sive ingenuity  or  courtly  study  can  invent." 

Upon  this  state  of  facts,  after  hearing  a  full  discus- 
sion from  William  Lewis,  for  the  motion,  and  Jonathan 
Dickenson  Sergeant,  for  the  defendant,  the  Chief  Jus- 
tice observed : 

"  The  counsel,  in  support  of  their  motion,  have  argued  that  this 
address  was  intended  to  prejudice  the  public  mind  upon  the  merits 
of  the  cause,  by  propagating  an  opinion  that  Browne  was  the  instru- 
ment of  a  party  to  persecute  and  destroy  the  defendant ;  that  he 
acted  under  the  particular  influence  of  Dr.  Rush,  whose  brother  is 
judge  of  this  court ;  and,  in  short,  that  from  the  ancient  prejudices 
of  all  the  judges,  the  defendant  did  not  stand  a  chance  of  a  fair 
trial.  Assertions  and  imputations  of  this  kind  are  certainly  calcu- 
lated to  defeat  the  administration  of  justice.  Let  us  therefore  in- 
quire, first,  whether  they  ought  to  be  considered  as  a  contempt  of 
court ;  and,  secondly,  whether,  if  so,  the  offender  is  punishable  by 
attachment.  And  here  I  must  be  allowed  to  observe,  that  libelling 
is  a  great  crime,  whatever  sentiment  may  be  entertained  by  those 
who  live  by  it.  With  respect  to  the  heart  of  a  libeller,  it  is  more 
dark  and  base  than  that  of  an  assassin,  or  than  his,  who  commits  a 
midnight  arson.  It  is  true,  that  I  may  never  discover  the  wretch 
who  has  burned  my  house  or  set  fire  to  my  barn ;  but  these  losses 
are  easily  repaired,  and  bring  with  them  no  portion  of  ignominy  or 


THOMAS    M'KEAN.  337 

reproach.  But  the  attacks  of  the  libeller  admit  not  of  this  consola- 
tion ;  the  injuries  which  are  done  to  character  and  reputation  seldom 
can  be  cured,  and  the  most  innocent  man  may,  in  a  moment,  be 
deprived  of  his  good  name,  upon  which  perhaps  he  depends  for  all 
the  prosperity  and  all  the  happiness  of  his  life.  To  what  tribunal 
can  he  then  resort.  It  is  in  vain  to  object  that  those  who  know  him 
will  disregard  the  slander,  since  the  wide  circulation  of  public  prints 
must  render  it  impracticable  to  apply  the  antidote  as  far  as  the 
poison  has  been  extended.  Nor  can  it  be  fairly  said,  that  the  same 
opportunity  is  given  to  vindicate,  which  has  been  employed  to  de- 
fame him ;  for  many  will  read  the  charge  who  may  never  see  the 
answer ;  and  while  the  object  of  accusation  is  publicly  pointed  at, 
the  malicious  and  malignant  author  rests  in  the  dishonorable  security 
of  an  anonymous  signature.  Where  much  has  been  said,  something 
will  be  believed ;  and  it  is  one  of  the  many  artifices  of  the  libeller  to 
give  to  his  charges  an  aspect  of  general  support,  by  changing  and 
multiplying  the  style  and  name  of  his  performances.  But  shall  such 
things  be  transacted  with  impunity  in  a  free  country,  and  among  an 
enlightened  people  ?  Let  every  honest  man  make  this  appeal  to  his 
heart  and  understanding,  and  the  answer  must  be — No ! 

"  The  true  liberty  of  the  press  is  amply  secured  by  permitting  every 
man  to  publish  his  opinions ;  but  it  is  due  to  the  peace  and  dignity 
of  society,  to  inquire  into  the  motives  of  such  publications,  and  to 
distinguish  between  those  which  are  meant  for  use  and  reformation, 
and  with  an  eye  solely  to  the  public  good,  and  those  merely  intended 
to  delude  and  defame.  To  the  latter  description,  it  is  impossible 
that  any  good  government  should  afford  protection  and  impunity. 

"If,  then,  the  liberty  of  the  press  is  regulated  by  any  just  prin- 
ciple, there  can  be  little  doubt  that  he  who  attempts  to  raise  a 
prejudice  against  his  antagonist,  in  the  minds  of  those  who  must 
ultimately  determine  the  dispute  between  them ;  who,  for  that  pur- 
pose, represents  himself  as  a  persecuted  man,  and  asserts  that  his 


338  THE  FORUM. 

judges  are  influenced  by  passion  and  prejudice ;  wilfully  seeks  to 
corrupt  the  source,  and  to  dishonor  the  administration  of  justice : 
and  such  evidently  was  the  object  and  tendency  of  Mr.  Oswald's  ad- 
dress to  the  public. 

"  Now  can  that  artifice  prevail,  which  insinuates  that  the  decision 
of  this  Court  will  be  the  effect  of  personal  resentment ;  for,  if  it  could, 
every  man  might  evade  the  punishment  due  to  his  offences,  by  first 
pouring  a  torrent  of  abuse  upon  his  judges,  and  then  asserting  that 
they  act  from  passion,  because  their  treatment  has  been  such  as 
would  naturally  excite  resentment  in  the  human  disposition.  But  it 
must  be  remembered,  that  judges  discharge  their  functions  under  the 
solemn  obligations  of  an  oath;  and  if  their  virtue  entitles  them  to 
their  station,  they  can  neither  be  corrupted  by  favor  to  .swerve  from, 
nor  influenced  by  fear,  to  desert  their  duty.  That  judge,  indeed, 
who  courts  popularity  by  unworthy  means,  while  he  weakens  his  pre- 
tensions, diminishes  likewise  the  chance  of  attaining  his  object,  and 
he  will  eventually  find  that  he  has  sacrificed  the  substantial  blessing 
of  a  good  conscience,  in  an  idle  and  visionary  pursuit." 

Having  thus  decided  the  question  submitted  to  the 
Court,  the  Chief  Justice  pronounced  the  following 
characteristic  sentence : 

"  Having  yesterday  considered  the  charge  against  you,  we  are 
unanimously  of  the  opinion  that  it  amounted  to  a  contempt  of  the 
Court.  Some  doubts  were  suggested,  whether  even  a  contempt  of 
court  was  punishable  by  attachment;  but  not  only  my  brethren 
and  myself,  but  likewise,  all  the  judges  of  England,  think  that, 
without  this  power,  no  court  could  possibly  exist.  Nay,  that  no 
contempt  could  indeed  be  committed  against  us,  we  should  be  so 
truly  contemptible. 

"  The  law  upon  the  subject  is  of  immemorial  antiquity,  and  there 


THOMAS    M'KEAN. 

is  not  any  period  when  it  can  be  said  to  have  ceased  or  discontinued. 
On  this  point,  therefore,  we  entertain  no  doubt. 

"  But  some  difficulty  has  arisen  with  respect  to  your  sentence,  for 
on  the  one  hand,  we  have  been  informed  of  your  circumstances,  and 
on  the  other,  we  have  seen  your  conduct.  Your  circumstances  are 
small,  but  your  offence  ia  great,  and  persisted  in.  Since,  however, 
the  question  seems  to  resolve  itself  into  this,  whether  you  shall  bend 
to  the  law,  or  the  law  shall  bend  to  you,  it  is  our  duty  to  determine 
that  the  former  shall  be  the  case.  Upon  the  whole,  therefore,  the 
sentence  is,  that  you  pay  a  fine  of  £10  to  the  Commonwealth,  be 
imprisoned  for  the  space  of  one  month,  that  is,  from  the  fifteenth  of 
July  to  the  fifteenth  of  August  next,  and  afterwards,  until  the  fine 
and  costs  are  paid.  Sheriff,  he  is  in  your  custody.* 

It  is  clear,  from  the  style  of  Chief  Justice  M'Kean's 
opinions,  that  he  was  a  great  admirer  and  imitator 
of  Lord  Mansfield,  and  with  whom,  at  one  time,  he 
held  an  epistolary  correspondence.  His  views  seem  to 
have  the  same  frame-work,  but  while  they  display  more 
energy,  they  manifest  less  judicial  dignity  and  mode- 
ration. That  he  was  a  great  JUDGE,  no  one  will  deny; 
but  he  had  not  that  enlargement  of  mind,  or  scope  of 
attainment,  that  entitled  him  to  be  considered  a  great 
man  ;  he  resembled  Holt  more  than  Mansfield.  With 
all  the  parsimony  that  has  been  attributed  to  Mans- 
field, it  is  doubtful  whether  Judge  M'Kean  would  have 

*  1188.  1  Dallas,  p.  329.  This  sentence  led  to  an  attempt  to  im- 
peach the  Chief  Justice,  in  the  Legislature  of  Pennsylvania,  which  was 
defeated,  chiefly  by  the  eloquence  of  Mr.  Lewis. — Vide,  Sketch  of  Mr. 
Lewis, 


340  THE  FORUM. 

been  capable,  in  Ms  Lordship's  circumstances,  "when 
all  his  valuable  property,  and  invaluable  library  had 
been  destroyed  by  a  lawless  mob,"  of  declining  all 
indemnity  from  the  government.  And  avoiding  all 
murmurs  and  complaints,  Mansfield  brought  no  action 
against  the  Hundred,  and  when  applied  to  by  the 
House  of  Commons,  through  the  solicitor  of  the  trea- 
sury, for  a  statement  of  the  value  of  his  property  de- 
stroyed by  the  Gordon  mob,  he  simply  replied  : 

"  How  great  soever  the  loss  may  be,  I  think  it  does  not  become 
me  to  claim  or  expect  reparation  from  the  State.  I  have  made  up  my 
mind  to  my  misfortune,  as  I  ought,  with  this  consolation,  that  it  came 
from  those  whose  object  manifestly  was  general  confusion  and  de- 
struction at  home,  in  addition  to  a  dangerous  and  complicated  war 
abroad.  If  I  should  lay  before  you  any  account  or  computation  of 
the  pecuniary  damages  I  have  sustained,  it  might  seem  a  claim,  or 
expectation  of  being  indemnified.  Therefore  you  will  have  no  far- 
ther trouble  on  the  subject,  from 

"  MANSFIELD." 

The  only  allusion  subsequently  made  by  him,  in  re- 
gard to  his  irreparable  loss,  was  contained  in  his  speech, 
vindicating  the  employment  of  the  military  in  the  sup- 
pression of  the  mob  : — 

"  The  noble  Duke  who  last  addressed  the  House,  mistakes,  in  sup- 
posing that  the  employment  of  the  military  to  suppress  the  late  riots, 
proceeded  from  an  extraordinary  exertion  of  the  royal  prerogative, 
and  in  his  inference,  that  we  were  living  under  martial  law,  I  hold 


THOMAS    M'KEAN. 

that  his  Majesty  acted  perfectly  and  strictly  in  accordance  with  the 
common  law  of  the  land  and  the  principles  of  the  Constitution,  and 
I  will  give  you  my  reasons  within  as  short  a  compass  as  possible.  I 
have  not  consulted  books,  INDEED  I  HAVE  NO  BOOKS  TO  CON- 
SULT !"* 

% 

But  to  return  from  this  episode.  It  happened, 
upon  one  occasion,  while  the  Supreme  Court  was 
holding  an  important  session,  during  a  period  of  great 
political  and  public  excitement,  a  large  assemblage 
of  persons,  and  a  consequent  tumult,  occurred,  in 
the  immediate  vicinity  of  the  court  room,  and  inter- 
fered materially  with  the  transaction  of  business.  The 
Chief  Justice  sent  for  the  sheriff,  and  directed  him  im- 
mediately to  suppress  the  riot.  The  sheriff  soon  after 
returned  and  declared  his  inability  to  do  so.  "Why, 
sir,"  said  the  Chief  Justice,  "  do  you  not  summon  your 
posse  to  your  aid  ?"  "  I  have  summoned  them,"  was 
the  reply,  "but  they  are  totally  inefficient,  and  the 
mob  disregard  them."  "Why  do  you  not  summon 

*  Cowper  thus  refers  to  his  Lordship's  lamented  loss,  in  a  vein  rather 
more  complimentary  than  poetical :— - 

"O'er  Murray's  loss  the  Muses  wept; 

They  felt  the  rude  alarm ; 
Yet  blest  the  guardian  care  that  kept 
His  sacred  head  from  harm. 

"  The  lawless  herd,  with  fury  blind, 

Have  done  him  cruel  wrong; 
The  flowers  are  gone,  but  still  we  find 
The  honey  on  his  tongue." 


342  THE  FORUM. 

ME?"  said  the  Chief  Justice.  The  sheriff,  looking 
somewhat  confused  for  a  time  at  this  direct  appeal,  at 
length  said:  "Well,  sir,  I  DO  summon  you;"  whereupon 
the  Chief  Justice  immediately  left  the  bench,  proceeded 
to  the  scene  of  disorder,  and  seizing  two  of  the  ringlead- 
ers, placed  them  in  custody,  which,  together  with  the 
influence  of  his  standing  and  authority,  at  once  re- 
stored matters  to  peace. 

We  do  not  vouch  for  the  correctness  of  this  state- 
ment, although  it  comes  from  a  respectable  source,  we 
are  somewhat  led  to  doubt  it,  from  the  fact  that  a 
similar  anecdote  is  related  of  Lord  Chief  Justice  Holt, 
whom,  indeed,  in  many  respects  Chief  Justice  M'Kean 
strongly  resembled ;  his  model,  as  we  observed,  was 
Mansfield,  but  difference  of  temper  spoiled  the  copy. 

Holt,  it  seems,  always  entertained  the  impression 
that  the  military  of  England — contrary  to  the  views 
of  Lord  Mansfield — could  only  be  legitimately  em- 
ployed against  a  foreign  enemy,  and  that  tumults  in 
the  community  were  to  be  suppressed  by  the  civil 
power  alone.  Upon  being  required,  on  one  occasion,  by 
the  government,  through  a  military  officer,  to  counte- 
nance the  soldiers  in  an  attempt  to  prut  down  a  danger- 
ous riot,  "  Return,  sir,"  said  his  Lordship,  "  to  those 
who  sent  you,  and  tell  them  that  no  officer  of  mine 
shall  accompany  soldiers ;  the  laws  of  the  kingdom  are 
not  to  be  executed  by  the  sword.  This  affair  belongs 
to  the  civil  authority,  and  soldiers  have  nothing  to  do 


THOMAS    M'KEAN.  343 

here."  He  then  ordered  his  tip-staves  and  constables 
to  follow  him  to  the  scene  of  outrage  and  tumult, 
where  the  populace,  upon  his  assurance  that,  if  they 
had  suffered  wrong,  they  should  have  full  justice, 
peaceably  dispersed.*  This  story  is  also  considered 
somewhat  apocryphal,  but  certain  it  is,  that  the  same 
Chief  Justice  did,  hi  his  proper  person,  with  the  aid 
of  his  court  attendants,  disperse  a  riotous  assembly  at 
Holborn.  This,  however,  we  are  told,  was  not  so  re- 
markable, as  such  had  been  the  practice  of  the  Chief 
Justices  of  the  King's  Bench,  from  the  earliest  times 
down  to  that  period. 

During  M'Kean's  second  term  of  office  as  governor  of 
Pennsylvania — for  he  was  thrice  elected — a  committee, 
consisting  of  Duane,  Lieper,  and  others  were  appointed 
by  a  town  meeting  to  wait  upon  him,  to  inform  him 
that  the  democracy  of  Philadelphia  were  utterly  op- 
posed to  the  nomination  of  William  Tilghman  as  chief 
justice  of  Pennsylvania.  The  committee  were  intro- 
duced into  the  executive  apartments,  and  the  governor 
received  them  in  his  civil  but  reserved  and  aristocratic 
manner,  treating  them  simply  as  his  constituents; 
when,  however,  they  announced  themselves  as  the 
representatives  from  the  democratic  party — the  sove- 
reign people — he  bowed  most  profoundly,  and  inquired 
of  them  what  the  great  democracy  of  Philadelphia 

*  Lord  Campbell's  life  of  Chief  Justice  Holt. 


344  THE  FORUM. 

required  of  him.  They  proceeded,  and  stated  the 
purposes  of  their  delegation,  and  in  pretty  plain  terms 
gave  hi™  to  understand  that  the  appointment  of  Mr. 
Tilghman  would  never  meet  the  approval  of  the  demo- 
cratic party.  "  Indeed !"  said  the  governor.  "  Inform 
your  constituents  that  I  bow  with  submission  to  the 
will  of  the  great  democracy  of  Philadelphia ;  but  by 
G — d?  William  Tilghman  shall  be  chief  justice  of  Penn- 
sylvania." 

The  governor  having  vetoed  what  was  deemed  an 
important  bill,  passed  by  the  legislature,  a  committee  of 
three  of  that  body  was  appointed  to  wait  upon  his  excel- 
lency, to  remonstrate  with  him,  and  to  urge  the  recon- 
sideration of  the  veto.  He  received  them  with  his 
accustomed  dignified  politeness,  and  after  they  had 
explained  the  object  of  their  mission,  apparently 
without  noticing  their  communication,  he  deliberately 
took  out  his  watch,  and  handing  it  to  the  chairman, 
said,  "  Pray,  Sir,  look  at  my  watch ;  she  has  been  out 
of  order  for  some  tune ;  will  you  be  pleased  to  put  her 
to  rights."  "Sir,"  replied  the  chairman,  with  some 
surprise,  "  I  am  no  watchmaker ;  I  am  a  carpenter." 
The  watch  was  then  'handed  to  the  other  members  of 
the  committee,  both  of  whom  declined,  one  being  a  cur- 
rier, the  other  a  bricklayer.  "Well,"  said  the  governor, 
"  this  is  truly  strange !  Any  watchmaker's  apprentice 
can  repair  that  watch ;  it  is  a  simple  piece  of  mechan- 
ism, and  yet  you  can't  do  it !  The  law,  gentlemen,  is  a 


THOMAS    M'KEAN.  345 

science  of  great  difficulty  and  endless  complication ;  it 
requires  a  life  time  to  understand  it.  I  have  bestowed 
a  quarter  of  a  century  upon  it;  yet  you,  who  can't 
mend  this  little  watch,  become  lawyers  all  at  once,  and 
presume  to  instruct  me  in  my  duty."  Of  course,  the 
committee  vanished,  and  left  the  governor  "  alone  in 
his  glory." 

In  1806,  when  the  House  of  Representatives  of  the 
State  of  Pennsylvania  sent  an  address  to  Governor 
M'Kean,  requesting  the  removal  of  Judge  Brecken- 
ridge,  the  request  was  utterly  refused.  The  committee 
attempted  to  remonstrate  with  him,  stating  that  the 
term  "  may  remove,"  in  the  constitution,  meant  must 
remove.  To  which  he  promptly  answered,  that  he 
would  have  them  to  know,  that  may  sometimes  meant 
wont. 

He  would  at  times,  though  very  rarely,  lay  aside 
the  rigidity  and  sternness  of  his  manner,  and  adopt  a 
familiarity  and  cordiality  that,  in  the  general,  were 
foreign  from  his  disposition.  A  very  worthy  man* 
applied  to  him  for  a  commission  as  justice  of  the  peace, 
but  stated  very  frankly  that  he  had  no  certificates  or 
backers.  "Never  mind,"  said  the  governor,  "I  require 
none ;  and  if  any  one  should  ask  you  how  you  got  the 
appointment,  tell  him  Thomas  M'Kean  recommended 
you,  and  the  governor  appointed  you,"  and  yet,  even 

*  John  Goodman,  of  the  Northern  Liberties. 
VOL.  I.— 23 


346  THE  FORUM. 

in  this,  and  in  similar  instances  of  kindness,  it  will  be 
perceived,  that  he  exulted  more  in  his  own  power,  than 
in  the  benefit  conferred  upon  others. 

On  the  twenty-sixth  of  September,  1781,  he  received 
from  Princeton  college,  the  diploma  of  Doctor  of  Laws, 
and  the  next  year  a  similar  honor  from  Dartmouth, 
New  Hampshire.  On  the  thirty-first  of  October, 
1785,  he  was  elected  a  member  of  the  Cincinnati.  He 
also  became  a  trustee  of  the  University  of  Pennsyl- 
vania, and  the  patron  of  various  political,  and  philan- 
thropic societies.  He  was  twice  married;  first  in 
1762,  to  Mary,  the  eldest  daughter  of  Joseph  Borden, 
of  Bordentown,  New  Jersey,  who  died  in  1773;  se- 
condly, in  September,  1774,  to  Sarah  Armitage,  of 
New  Castle,  Delaware.  By  the  first  wife  he  had  two 
sons  and  four  daughters,  and  by  the  second,  five  chil- 
dren, none  of  whom  are  now  living ;  and  most  of  whom 
were  survived  by  their  illustrious  father. 

At  length,  on  the  twenty-fourth  of  June,  1817,  at 
the  age  of  eighty-three,  he  sunk,  like  "mellowed  fruit, 
to  the  earth."  He  died — and  all  that  was  mortal  of 
him,  was  deposited  in  the  burial-ground  of  the  first 
Presbyterian  church,  in  Market  street  above  Second, 
in  the  city  of  Philadelphia. 

Governor  M'Kean  was  a  tall,  stately,  and — notwith- 
standing his  great  age — erect  person.  He  usually  wore 
a  cocked  hat,  carried  a  gold-headed  cane,  and  walked, 
even  to  the  close  of  his  life,  though  with  a  somewhat 


THOMAS    M'KEAN.  347 

tottering  step,  with  great  apparent  dignity  and  pride. 
His  courtesy  always  displayed  as  much  selfishness  as 
suavity,  he  generally  moved  through  the  streets  alone, 
and  apparently  much  absorbed  in  his  reflections.  As  is 
known,  he  was  one  of  the  signers  of  the  Declaration  of 
Independence,  and  if  we  may  use  the  phrase — which  we 
do  in  all  respect  and  kindness — he  was  an  actual  imper- 
sonation, a  practical  living,  walking  emblem  and  me- 
mento of  that  Declaration.  Apparently,  the  two  proud- 
est men  the  city  ever  beheld — and  to  be  sure  they  had 
much  to  be  proud  of — were  our  present  venerable  sub- 
ject, and  his  son-in-law,  the  Marquis  de  CasaYrujo,  the 
ambassador  of  Spain,  the  father  of  the  lamented  Duke 
of  Soto  Major,  whose  melancholy  and  untimely  death 
recently  occurred  at  Madrid.* 

In  contemplating  the  career  of  Governor,  or  Chief 
Justice  M'Kean,  (who,  apart  from  scanty  instruction 
received  in  early  life,  from  the  Reverend  Francis  Al- 
lison, his  preceptor,  had  but  few  opportunities  of 
obtaining  literary  instruction,)  we  are  astonished  at 
the  force  and  expansion  of  his  native  genius,  even 
unaided,  as  it  was,  by  the  advantages  of  a  liberal 

*  This  amiable  and  accomplished  nobleman  was  born  in  Philadelphia, 
and  upon  his  father's  death,  succeeded  to  the  title  of  Marquis.  He  after- 
wards married  the  Duchess  of  Soto  Major,  and,  under  the  laws  of  Spain, 
(differing  from  those  of  England,)  assumed  his  wife's  title.  He  was 
ambassador  from  Spain  to  England  and  to  France,  and  ranked  highly 
as  an  honorable  and  skilful  diplomatist. 


348  THE  FORUM. 

education.  In  this  respect  he  strongly  resembled 
William  Lewis.  In  mere  intellectual  power,  they  were 
equal,  if  not  superior,  to  most  of  their  cotemporaries ; 
but  having  unassisted,  as  it  were,  elevated  themselves 
upon  the  ladder  of  ambition,  above  the  masses,  with  a 
natural,  but  not  commendable  spirit,  they  held  the  cour- 
tesies and  amenities  of  life  as  matters  of  comparative  in- 
difference. They  became  reserved,  haughty,  and  some- 
times overbearing ;  and  from  being  in  advance  of  those 
who  had  enjoyed  greater  advantages  or  opportunities, 
they  assumed  superiority  over  those  who,  with  equal 
native  capacity,  had  been  benefited  and  improved  by 
all  the  charms,  embellishments,  and  appliances  of  a 
refined  education. 

Competition  and  equality  subdue  pride.  They  impart 
to  us  the  salutary  lesson,  that  talents,  after  all,  are  not 
so  unequally  distributed  as  may  by  some  be  supposed ; 
that  with  equal  chances  and  equal  labour  men  attain 
equal  eminence,  when  their  efforts  are  judiciously  di- 
rected; if  not  in  the  same  departments  of  life,  yet 
in  others  of  equal  utility.  This  conviction  should 
teach  us  all,  becoming  modesty  and  humility. 

Vanity  may  sometimes  attend  upon  true  great- 
ness, but  pride — never.  Vanity  is  often  the  stimu- 
lus to  great  achievements;  pride  is  only  their  sub- 
stitute. Pride  walks  alone  through  life  in  assumed 
self-dependence;  vanity  lives  and  breathes  only  in 
a  crowd.  Pride  appeals  from  others  to  itself;  vanity 


THOMAS    M'KEAN.  349 

appeals  from  itself  to  others.  There  is  little  in  this 
life  to  encourage  either,  but  the  latter  is  the  less 
exceptionable  of  the  two.*  But  suggesting,  rather 
than  pursuing  these  reflections,  pass  we  now  to  Bush- 
rod  Washington,  an  Associate  Justice  of  the  Supreme 
Court  of  the  United  States ;  a  model  judge,  the  idol 
of  the  bar,  and  the  glory  of  the  American  bench. 

*  As  a  general  thing,  it  has  been  well  remarked — though  certainly  not 
applicable  in  the  present  instance — that  "  your  would-be  dignified  men 
are  great  blockheads ;  they  carry  themselves  loftily  and  keep  at  a  distance, 
that  their  ignorance  may  not  be  detected.  Men  are  like  ships,  the  more 
they  contain,  the  lower  they  carry  their  head."  There  are,  to  be  sure, 
many  illustrious  instances  to  the  contrary ;  Lord  Chatham,  Lord  Erskine, 
and  Mr.  Pinckney — but  the  display  for  which  they  were  remarkable,  arose 
rather  from  inordinate  vanity,  than  pride.  This  was  also  the  besetting 
sin  of  Hortensius.  He  was  so  devoted  to  dress  and  to  theatrical  gesticu- 
lation, that  he  was  accused  of  having  derived  a  fondness  for  both  from  a 
close  study  of  Roscius,  at  that  time  the  most  distinguished  of  all  the 
dramatic  performers  in  Rome.  But,  upon  the  contrary,  it  turned  out 
upon  investigation,  that,  instead  of  he  borrowing  from  Roscius,  the  latter 
regularly  attended  the  forum,  for  the  purpose  of  imitating  Hortensius ! 


CHAPTEll  V. 

BUSHROD    WASHINGTON. 

WASHINGTON — the  proudest  and  brightest  name  in 
the  annals  of  our  country — was  preceded  by  James 
Wilson,  James  Iredell,  William  Patterson,  and  Samuel 
Chase,  in  the  order  in  which  they  are  named,  as  Jus- 
tices of  the  Supreme  Court  of  the  United  States ;  all 
of  whom,  separately,  presided  from  time  to  time  (in  the 
spring  and  fall  of  the  year,)  in  the  United  States  Cir- 
cuit Courts  for  the  district  of  Pennsylvania.  A  brief 
notice  of  those  eminent  men,  is  all  that  is  required,  as 
an  introduction  to  their  more  eminent  successor. 

Judge  Wilson,  for  many  years  prior  to  his  appoint- 
ment, had  been  a  powerful  advocate  at  the  Philadel- 
phia bar ;  but  his  reputation  on  the  bench,  as  we  are 
told,  was  inferior  to  his  fame  as  an  advocate.  He  held 
his  judicial  post,  however,  from  the  twenty-ninth  of 


BUSHROD    WASHINGTON. 

September,  1789,  until  1798,  when  death  relieved  him 
from  his  official  duties. 

Judge  Iredell  was  appointed  in  1790,  and  occupied 
the  bench  until  1799,  when  he  died,  universally  es- 
teemed and  regretted.  William  Patterson,  of  New 
Jersey,  is  described  as  an  excellent  lawyer,  a  man  of 
great  moral  and  mental  worth,  and  of  extraordinary 
judicial  patience  and  propriety.  He  was  appointed  in 
1793,  and  died  in  1806.  Samuel  Chase,  of  Maryland, 
one  of  the  signers  of  the  Declaration  of  Independence, 
a  man  of  ripe  legal  learning,  but  of  a  lofty  and  most 
despotic  spirit,  became  an  associate  justice  in  the  year 
1796. 

Judge  Chase  appears  never  to  have  been  in  much 
favor  with  the  Philadelphia  bar,  although  its  mem- 
bers all  united  in  ascribing  to  him  abilities  of  no 
common  order.  We  have  spoken  of  the  Philadelphia 
bar,  which  may  be  said  at  that  period,  to  have  vir- 
tually embraced  the  bar  of  the  whole  country.  Phila- 
delphia was  then,  let  it  be  remembered,  the  centre 
of  the  Union  and  the  seat  of  the  general  govern- 
ment; all  the  rays  of  society — science  and  intelli- 
gence— centred  upon  her;  she  was  the  very  cyno- 
sure of  the  nation.  Yet,  with  all  the  competition  of 
learning  and  accomplishment  that  this  condition  of 
things  naturally  involved,  the  legal  profession  here, 
always  maintained  its  supremacy;  and  the  glory  then 
acquired — even  now,  in  its  departing  beams,  still  fur- 


352  THE  FORUM. 

nishes  some  faint  idea  of  its  meridian  brightness  and 
fulness. 

He  must,  indeed,  have  been  a  proud  man,  though 
adorned  with  high  official  honors,  that  even  in  fancy 
could  elevate  himself  above  such  a  bar  as  then  graced 
our  courts ;  and  he  must  have  been  a  bold  and  pre- 
sumptuous man,  that"  could  hope  to  overawe  it.  Judge 
Chase  attempted  loth,  and  failed  in  loth;  and  by  over- 
reaching his  legitimate  rights,  diminished  his  power. 
An  infant  might  win  such  a  bar,  but  a  giant  could  not 
control  it.  They  stood  as  one  man,  with  as  firm  and  as 
pure  a  purpose  as  animated  their  ancestors,  who  shook 
off  the  yoke  of  foreign  oppression  and  bartered  blood 
for  liberty.  If  the  bar  should  always  thus  prove  faith- 
ful to  themselves,  no  court  could  ever  encroach  upon 
their  privileges  with  impunity. 

From  the  moment  Judge  Chase  took  his  seat,  it  was 
obvious,  that  he  had  either  mistaken  himself  or  those 
around  him.  Civility  was  an  essential  integral  part  of 
the  profession;  it  was  extended  to  all — it  was  expected 

from  all.     It  may  well  be  conceived,  therefore,  what 

i 

was  the  surprise  experienced  by  one  of  the  mildest, 
most  pious,  and  most  exemplary  men  of  the  time  to 
which  we  refer,  and  to  whose  recollection  we  owe  the 
anecdote — upon  entering  the  Circuit  Court  room  where 
Judge  Chase  presided — to  be  made  a  witness  to  the 
following  discreditable  occurrence. 

An  important  case  was  before  the  Court,  in  which  a 


BUSHROD    WASHINGTON.  353 

learned  gentleman  by  the  name  of  Samuel  Leake,  from 
Trenton,  (in  an  adjoining  State,)  was  engaged.  Mr. 
Leake  was  remarkable,  generally,  for  the  number  of 
authorities  to  which  he  referred,  and  upon  this  occasion 
he  had  brought  a  considerable  portion  of  his  library 
into  court,  and  was  arranging  the  books  upon  the  table 
at  the  time  the  judge  took  his  seat;  when  the  following 
laconic  colloquy  took  place  : — 

Judge  CJiase. — "  What  have  you  got  there,  sir  ?" 

Leake. — "  My  books,  sir." 

Ctiase.—" What  for?" 

Leake. — "  To  cite  my  authorities." 

Chase.— "To  whom?" 

Leake. — "  To  your  Honor." 

Chase.—"  I'll  be  d— d  if  you  do." 

Not  a  great  while  after  this  came  on  the  indictment 
of  Fries,  for  treason  against  the  United  States.  Judge 
Chase  and  his  associate,  Judge  Peters,  held  the  court; 
Mr.  Rawle  was  the  district-attorney,  Mr.  Lewis  and  Mr. 
Dallas  .represented  the  prisoner.  Immediately  upon  the 
jury  being  sworn,  contrary  to  all  usage,  and  all  propriety, 
without  having  heard  any  portion  of  the  case,  the  judge 
submitted  in  writing,  the  law,  as  he  intended  to  lay  it 
down  in  his  charge  to  the  jury.  Judge  Peters,  who  knew 
the  Philadelphia  bar  perfectly  well,  having  told  him — 
to  use  his  own  language — that  "  the  bar  would  cer- 
tainly take  the  stud,  if  that  course  were  attempted." 


354  THE  FORUM. 

Nevertheless,  Judge  Chase  handed  down  his  opinion 
to  Mr.  Lewis,  who  refused  to  receive  it,  declaring,  at 
the  same  tune,  that  "his  hand  should  never  be  contami- 
nated by  touching  a  pre-judged  opinion."  This  led  to 
great  embarrassment  and  difficulty,  the  judge  persisted 
in  his  purpose,  Mr.  Lewis  and  Mr.  Dallas  withdrew 
from  the  defence,  and  Mr.  Rawle,  the  district-attorney, 
was  condemned,  with  great  pain  to  himself,  to  prose- 
cute for  an  offence  involving  life,  when  the  prisoner 
was  undefended.  This  trial,  if  it  may  be  so  called, 
resulted  hi  a  conviction,  and  finally  led  to  the  impeach- 
ment of  Chase  in  1805,  before  the  Senate  of  the  United 
States.  All  the  proceedings  are  fully  set  forth  in  the  re- 
port of  the  trial  and  impeachment,  published  at  the  time. 

The  judge  was  acquitted,  and  Fries  pardoned. 

With  all  these  objections  to  Judge  Chase,  however, 
there  is  a  feature  in  his  life  that  at  least  shows  he  was 
a  man  of  kind  feeling,  and  perfectly  sensible  to  the 
influence  of  gratitude. 

Shortly  after  the  impeachment  referred  to  before 
the  Senate  of  the  United  States,  in  which  Luther  Mar- 
tin made  one  of  his  ablest  speeches,  he  (Martin)  was 
engaged  in  the  Circuit  Court  of  the  United  States  for 
the  District  of  Maryland.  It  was  the  infirmity  of  that 
great  man,  at  least  towards  the  latter  part  of  his  pro- 
fessional life,  to  indulge  in  an  excess  of  drinking,  which, 
while  it  impaired  his  faculties,  rendered  him  somewhat 
irritable,  and  at  times  offensive  in  his  deportment  to- 


BUSHROD    WASHINGTON.  355 

wards  the  Court.  Bearing  in  mind  the  great  service 
he  had  rendered  Justice  Chase ;  while  in  his  cups,  he 
probably  presumed  upon  it.  However  this  may  be, 
upon  the  occasion  mentioned,  he  repeatedly  treated 
the  opinions  of  the  judges  with  obvious  disrespect, 
until  at  last  he  was  given  to  understand  that  his  con- 
duct could  be  tolerated  no  longer.  This  intimation  had 
no  effect,  and  finally  the  district  judge  drew  out  a 
formal  commitment  for  contempt,  and  handed  it  to  the 
circuit  judge  for  signature.  Judge  Chase,  as  has  been 
observed,  was  an  able  judge,  and  as  arbitrary  as  he 
was  able;  but  when  the  paper  was  handed  to  him, 
gratefully  remembering  the  service  which  he  had  re- 
ceived from  Martin,  after  having  taken  the  pen  to  sign 
the  commitment,  he  impulsively  threw  it  away,  ex- 
claiming, "  Whatever  may  be  my  duties  as  a  judge, 
Samuel  Chase  can  never  sign  a  commitment  against 
Luther  Martin." 

But  this  distinguished  judge  was  as  bitter  in  his  re- 
sentments as  he  was  grateful  for  benefits ;  and  it  was 
understood  that  he  never  forgave  Moses  Levy  for  the 
part  taken  by  him  in  relation  to  the  "  impeachment ;" 
and  his  feelings  were  manifested  in  the  following 
way.  While  Judge  Chase  sat  in  the  Delaware  district, 
Mr.  Levy,  being  personally  interested  in  a  case  before 
him,  made  an  application  to  postpone  the  cause,  filing 
his  affidavit,  in  which  he  swore  to  certain  matters  of 
fact  and  law,  that  rendered  the  postponement  neces- 


356  THE  FORUM. 

sary.  "Very  well,  Mr.  Levy,"  said  the  judge,  in  a 
manner  as  cold  and  pointed  as  an  icicle,  "the  case 
must  of  course  be  postponed ;  and,  indeed,  the  court  is 
much  indebted  to  Mr.  Levy  for  his  affidavit,  for  he  has 
sworn  to  some  points  of  law,  of  which,  I  confess,  I 
have  always  had  very  considerable  doubt." 

Judge  Chase  died  the  nineteenth  of  June,  1811,  at 
the  age  of  seventy — born  in  1741. 

But  we  have  dwelt — though  briefly  and  cursorily — 
longer  than  we  purposed  upon  the  earlier  members  of 
the  United  States  Circuit  Court  for  the  Third  District. 
We  come  now  to  our  especial  subject. 


BUSHROD    WASHINGTON,  L.L.D., 

ASSOCIATE  JUSTICE   OF   THE    SUPREME  COURT   OF   THE   UNITED   STATES. 
BORN,  1761— DIED,  1829. 

Perhaps  the  greatest  Nisi  Prius  judge  that  the  world 
has  known,  without  even  excepting  Chief  Justice  Holt 
or  Lord  Mansfield,  was  the  late  Justice  Washington. 
It  was  impossible  to  conceive  of  a  better  judicial  man- 
ner; and  when  to  that  is  added  great  legal  acquirement, 
great  perspicuity  and  promptitude,  great  mildness, 
exemplary  self-possession,  and  inflexible  courage,  all 


BUSHROD    WASHINGTON.  357 

crowned  by  an  honesty  of  purpose  that  was  never 
questioned ;  he  may  be  said,  in  the  estimation  of  the 
bar  and  the  entire  country,  to  have  stood  among  the 
judiciary,  as  par  excellence,  "  THE  JUDGE."  And  yet, 
we  have  heard  it  remarked  by  a  most  eminent  belles- 
lettre  scholar,  that  Judge  Washington's  literary  reading 
was  so  limited  that  it  was  questionable  whether  he 
even  knew  who  was  the  author  of  Macbeth.  Lord 
Tenterden,  we  are  told,  did  not  know  the  author  of 
Hamlet.  Lord  Holt  and  Lord  Kenyon  were  certainly 
not  remarkable  for  classical  attainments ;  and  there  is 
no  evidence  on  record  of  any  distinguished  judicial 
functionary,  who  was  conspicuous  for  his  knowledge 
of  general  literature.  The  law  is  a  jealous  mistress, 
and  will  bear  no  rivalry  either  from  the  Graces  or  the 
Muses,  as  Blackstone  has  shown.  To  know  your  own 
peculiar  duties  well,  and  to  discharge  them  faithfully, 
is  infinitely  better  than  by  too  many  pursuits — too 
much  diffusion — to  waste  or  misdirect  the  powers  of 
the  mind.  It  is  related  of  Dr.  Par,  that  when  a  gen- 
tleman complained  to  him  of  having  too  many  irons  in 
the  fire,  that  is,  being  too  variously  engaged,  the 
learned  pundit  replied,  "  That  is  a  great  mistake ;  put 
them  all  in,  tongs,  poker,  and  all."  This  may,  in  some 
rare  instances,  perhaps,  answer  pretty  well ;  but  it  not 
unfrequently  happens,  that  those  who  adopt  this  philo- 
sophy, sooner  or  later  burn  their  fingers. 

Judge  Washington  concentrated  all  his  mind  and 


358  THE  FORUM. 

learning  upon  one  great  object — the  faithful  discharge 
of  his  official  duties,  and  thereby  avoided  the  annoyance 
and  distraction,  if  he  lost  the  distinction,  of  diversified 
learning.  He  was  a  classical  scholar,  of  great  early  pro- 
mise, but  was  never  elevated  to  office  by  his  uncle,  (the 
Father  of  his  country,)  who  studiously  avoided  every 
imputation  of  undue  partiality  to  his  kinsmen.  President 
Adams,  however,  upon  succeeding  to  the  post  of  Chief 
Magistrate  of  the  Union,  in  the  year  1798,  conferred 
upon  Bushrod  Washington,  still  a  young  man,  being 
only  thirty-seven  years  old,  the  appointment  of  Asso- 
ciate Judge  of  the  Supreme  Court  of  the  United  States. 
This  appointment,  and  that  which  speedily  followed, 
the  Chief  Justiceship  of  JOHN  MARSHALL,  were  enough 
in  themselves  to  secure  a  lasting  obligation  of  the 
country,  to  the  appointing  power. 

Upon  Washington's  appointment,  he  entered  at  once 
upon  his  duties,  and  continued  to  perform  them  with 
punctuality,  fidelity,  and  distinguished  ability,  to  the 
close  of  his  valuable  life,  which  occurred  in  the  city  of 
Philadelphia,  on  the  twenty-sixth  day  of  November, 
1829. 

The  members  of  the  Philadelphia  bar,  in  commemo- 
ration of  his  worth,  placed  over  the  judgment  seat, 
where  he  had  so  long  presided,  a  marble  tablet,  the 
inscription  upon  which,  was  furnished  by  Joseph  R. 
Ingersoll  and  Joseph  Hopkinson,  two  of  the  most  pro- 
minent and  eloquent  members  of  the  bar.  We  must 


BUSHROD    WASHINGTON.  359 

not  withhold  this  two-fold  tribute  to  the  virtues  of  the 
departed,  and  the  gratitude  of  the  survivors. 

INSCRIPTION. 

THIS  TABLET 

records  the  affection  and  respect  of  the  members  of  the 
Philadelphia  Bar, 

for 

BUSHROD  WASHINGTON, 

an  Associate  Justice  of  the  Supreme  Court  of  the  United  States ; 
alike  distinguished  for  simplicity  of  manners 

and  purity  of  heart ; 

fearless,  dignified,  and  enlightened  as  a  judge, 
no  influence  or  interest  could  touch  his  integrity 

or  bias  his  judgment ; 

a  zealous  PATRIOT  and  a  pious  CHRISTIAN. 

He  died  at  Philadelphia,  on  the  26th  of  November,  A.  D.  1829, 

leaving  to  his  professional  brethren  a  spotless  fame, 

and  to  his  country 
the  learning,  labor,  and  wisdom  of  a  long  judicial  life. 

Judge  Washington  was  a  man  of  about  five  feet  six 
inches  high,  with  a  finely-chiselled,  feminine  face,  and  of 
a  slender  and  feeble  frame,  though  not  deficient  in  acti- 
vity. His  eyes  were  black,  his  hair  brown,  tinged  with 
gray ;  his  forehead  expansive,  and  marked  with  thought, 
and  his  whole  bearing  indicating  the  most  perfect  mo- 
desty, gravity,  and  dignity.  He  rarely  smiled,  but  his 
smile  was  as  artless  as  that  of  an  infant.  He  never 
held  conversations  upon  the  bench  or  in  the  court 


360  THE  FORUM. 

room.  The  moment  he  entered  the  temple  of  justice, 
he  was  every  inch  a  judge. 

During  a  trial  he  took  but  few  notes,  but  kept  his  eye 
fixed  upon  the  witness  and  counsel.  He  never  addressed 
the  audience,  nor  seemed  to  know  they  were  present. 
We  never  knew  him  to  speak  even  to  the  crier,  but  once, 
and  that  was  upon  an  occasion  when  the  court  room 
being  very  much  crowded,  the  proceedings  were  some- 
what interrupted.  The  crier  bellowed  silence,  over 
and  over  again,  when  the  judge,  turning  towards  him 

in  the  most  composed  and  quiet  way,  said :  "  Mr. , 

it  seems  to  me,  that  you  make  much  more  noise  than 
you  suppress,  and  if  I  should  have  occasion  to  speak 
again  upon  the  subject,  it  will  be  to  your  successor." 
This  rebuke  at  once  restored  matters  to  their  propriety. 
But  the  taciturnity  of  the  Circuit  Court  judge  had  always 
been  too  common,  to  render  the  silence  of  Judge  Wash- 
ington so  remarkable;  for  Judge  Patterson  is  well  re- 
membered to  have  tried  a  case  that  lasted  seventeen 
days,  and  without  ever  asking  a  question. 

Before  Judge  Washington,  no  just  cause  could  fail ; 
no  artifice  succeed,  whatever  might  be  the  talent  of  its 
advocate.  The  judge  had  no  partialities,  no  prejudices, 
no  sectional  or  party  bias.  The  proudest  man  was  awed, 
and  the  humblest  man  was  sustained  before  him.  He 
encouraged  the  weak  and  repressed  the  powerful.  To 
the  young  and  the  inexperienced  members  of  the  bar, 
he  was  always  attentive  and  indulgent ;  he  listened  to 


BUSHROD    WASHINGTON.  361 

them  with  great  patience  and  with  marked  courtesy. 
As  an  instance  of  this,  I  recollect,  shortly  after  I  was 
admitted  to  the  bar,  having  been  concerned  in  the  case 
of  Zelin  &  Rhoads  v.  Governor  Snyder,  Mr.  Binney 
and  Mr.  Rawle  being  my  colleagues,  and  Messrs.  Bel- 
las, Chauncey  and  Kittera,  representing  the  defendant. 
It  was  an  important  ejectment  for  a  large  tract  of 
land.  As  junior  counsel,  it  became  my  duty  to  open 
it,  which  was  done ;  but  upon  turning  round  to  call 
the  witnesses,  who  were  present  when  I  commenced 
my  speech,  to  my  astonishment  they  had  all  disap- 
peared ;  they  were  necessary  to  prove  the  possession 
of  the  defendant.  Here  was  a  dilemma,  as  I  thought, 
• — perhaps  erroneously — produced  by  the  management 
of  the  adverse  party.  I  at  once  stated  the  difficulty 
to  the  Court ;  Judge  Washington,  who  appeared  to  un- 
derstand it  as  I  did,  replied. in  the  kindest  way,  "We 
will  wait  a  moment,  sir,  perhaps  they  will  return." 
After  waiting  about  ten  minutes,  which  seemed  to  me* 
like  an  hour,  he  turned  towards  me,  and  said:  "I 
believe  the  case  must  go  on."  In  my  extremity  I 
called  upon  Mr.  Bellas,  one  of  the  opposite  counsel, 
who,  living  in  the  vicinity  of  the  locus  in  quo,  I  pre- 
sumed must  be  acquainted  with  the  subject.  The 
counsel  objected  to  being  sworn,  on  the  ground  that 
he  was  not  bound  to  disclose  what  might  injuriously 
affect  his  client.  "Why  not  ?"  replied  the  judge,  with 
more  than  usual  fire  in  his  eye,  "you  are  not  asked  to 
VOL.  i. — 24 


362  THE 

state  anything  confided  to  you  by  your  client;  but  the 
relation  of  client  and  counsel,  does  not  impart  to  the 
counsel  any  exemption  from  the  obligation  to  testify 
to  what  he  independently  knows ;  if  you  know,  there- 
fore, you  must  state  who  was  in  possession  of  the 
land.  ^  Were  it  otherwise,  when  a  member  of  the  bar 
has  knowledge  of  a  fact  important  for  the  case  of 
one  party,  it  would  only  be  requisite  for  the  other 
party  to  employ  him,  and  thereby  defeat  the  purposes 
of  justice — let  him  be  sworn." 

There  was  one  occurrence,  and  only  one,  that  is 
known,  indicating  undue  excitement  on  the  part  of  the 
judge.  The  Honorable  Richard  Peters  was  the  Dis- 
trict Judge  of  the  United  States,  for  Pennsylvania ;  he 
was  a  man  of  great  honesty  of  purpose  and  infinite 
wit,  but  certainly  not  a  profound  lawyer;  and  as  often 
happens,  with  those  of  confined  views,  he  had  rather 
loose  notions  of  equity;  instead  of  considering  it,  as 
Blackstone  does,  as  that  rule,  whereby  the  defects  of 
the  law  arising  from  its  universality  were  remedied, 
he  looked  upon  it  as  a  matter  of  abstract  justice.  With 
these  opinions,  he  not  unfrequently  somewhat  crossed 
Judge  Washington  in  his  views,  and  no  doubt  this 
course,  long  continued,  rendered  the  Circuit  Judge  unu- 
sually sensitive.  Upon  one  occasion,  when  a  case  was 
presented  to  the  Court,  in  which  the  construction  of 
the  law  bore  with  some  hardship  upon  the  defendant, 
and  Judge  Washington  decided  accordingly,  Judge 


BUSHROD    WASHINGTON.  353 

Peters  was  overheard  to  say,  "  That  may  be  law,  but 
I  am  sure  it  is  not  equity."  "Equity!"  replied  his 
learned  brother,  "  What's  equity  ?  d — n  equity." 

During  the  argument  of  the  case  of  Sinnickson's 
Will,  before  the  Circuit  Court  at  Trenton,  New  Jersey, 
in  the  year  1822,  although  but  shortly  after  my  admis- 
sion, I  attended  the  court  regularly,  and  dined  with 
the  older  and  more  distinguished  members  of  the  bar, 
at  Bispham's  hotel;  among  those  at  our  table,  were 
Richard  Stockton,  William  Griffith,  and  other  eminent 
men,  and  to  my  surprise,  Judge  Washington,  himself, 
formed  one  of  the  company,  which  was  certainly  con- 
trary to  his  usage  in  any  other  part  of  his  circuit. 
Upon  these  occasions  he  showed  great  discretion,  mo- 
desty and  cheerfulness,  and  at  least,  furnished  one  in- 
stance of  his  courage  and  humanity,  which  should. never 
be  forgotten,  and  which  shall  be  related  in  its  order. 

Mr.  Stockton,  who  was  a  man  of  great  intellectual 
power,  and  whose  frankness  sometimes  overstepped 
some  of  the  modern  refinements,  generally  took  the 
lead  in  conversation.  Washington  started  no  sub- 
jects, but  simply  answered,  when  appealed  to.  The 
first  topic  was  the  arrival  of  the  Spanish  ambassa- 
dor, Don  Vives.  "  I  am  informed,"  said  S.,  "  that  he 
cannot  speak  or  write  a  word  of  English.  How  is 
that  ?"  "  I  don't  know,"  said  the  Judge,  "  but  if  that 
is  the  case,  he  is  in  an  awkward  condition,  for  Mr. 
Adams,  (the  Secretary  of  State,)  will  not  allow  him 


364  THE 

much  time  to  learn  the  language."  From  this,  they 
passed  to  Mr.  Middleton's  Russian  mission;  the  sala- 
ries and  private  fortunes  of  ministers,  &c.,  and  lastly, 
to  the  United  States  Supreme  Court  and  the  limi- 
tation of  the  judicial  tenure  in  New  York.  "  I  have 
great  admiration,"  said  Stockton,  "for  Chancellor  Kent; 
he  is  undoubtedly  one  of  the  ablest  men  of  our  time 
— what  an  absurdity  to  displace  him  by  legislative 
enactment,  and  thereby  deprive  the  State  and  the 
country  of  the  benefits  of  his  great  legal  learning  and 
experience,  at  the  very  period  when  they  would  be 
most  useful.  Now,  if  Chief  Justice  Marshall  should 
die,  which  heaven  forbid,  what  a  reproach  would  it  not 
be  to  New  York,  if  Chancellor  Kent  should  be  ap- 
pointed to  his  place ;  nothing  would  rejoice  me  more. 
I  tremble  at  the  thought  of  a  mere  political  appoint- 
ment to  the  Supreme  Court,  the  anchor  of  our  hopes." 
This  struck  me  as  a  rough  remark,  as  addressed  to 
Judge  Washington,  who — at  least  at  Nisi  Prius — was 
equal  to  either  of  them  as  a  judge ;  but  he  simply 
smiled  an  approval  of  the  sentiment,  and  the  theme  was 
changed.  Mr.  Stockton  again  addressed  him,  saying, 
"  I  have  known  you  and  Griffith  here,  man  and  boy, 
for  over  thirty  years,  and  there  are  about  half  a  dozen 
men  whom  I  should  like  to  see  together  with  you,  at 
my  table — yourselves,  of  course;  Sitgreaves,  of  Easton; 
Gaston,  of  North  Carolina ;  and  Dessaussure,  of  South 
Carolina."  The  colloquists  then  joined  in  discussing 


BUSHROD    WASHINGTON.  355 

the  position  and  abilities  of  the  persons  referred  to ; 
when,  passing  from  that  subject,  Mr.  Stockton  inquired, 
"  Have  you  seen  the  account  of  the  melancholy  po- 
sition in  which  Governor  Desha,  of  Kentucky,  has 
been  placed  by  the  crime  of  his  son  ?"  "  It  is  a  sad 
affair,"  said  the  Judge.  "  But,"  rejoined  Stockton,  "the 
worst  of  it  is,  that  the  son,  having  been  convicted,  the 
Governor,  his  father,  must  now  decide  between  signing 
the  death-warrant  or  a  pardon."  "And  that,  you  con- 
sider a  difficulty  ?"  said  the  Judge.  "  Certainly,"  re- 
plied the  interlocutor ;  "  Why,  I  would  like  to  know, 
now,  what 'you,  an  upright,  impartial,  and  inflexible 
judge,  would  do  in  such  a  case?"  "Do!"  was  the 
reply ;  "  Do  you  doubt,  Mr.  Stockton,  what  I  would 
do  ?"  his  eye  sparkling,  and  his  little  figure  expanding 
by  the  side  of  his  gigantic  friend ;  "  why,  sir,  I  would 
PARDON  HIM  AT  ONCE  ;  the  time  has  long  gone  by,  when 
it  was  deemed  either  natural  or  honorable  to  play  the 
Roman  father." 

Such  were  the  sentiments  of  a  man  who  never  was 
a  father,  but  who  spoke  from  his  own  magnanimous 
and  heroic  feelings.  It  was  the  same  generous  emo- 
tion that  swayed  his  immortal  uncle,  in  his  sympa- 
thies for  the  unhappy  Andre;  the  merciful  effect  of 
which  sympathies  nothing  could  have  prevented,  but 
the  imperative  demands  of  devoted  patriotism. 

It  is  not  my  province  to  invade  the  sanctity  of 
domestic  life,  even  to  witness  its  virtues ;  but  I  cannot 


366  THE  FORUM. 

but  notice  the  tenderness  and  self-sacrificing  spirit  of 
Judge  Washington,  as  manifested  towards  his  wife. 

Mrs.  Washington  was  an  accomplished  woman,  but 
of  a  highly  excitable  and  nervous  temperament.  She 
never  was  happy  in  the  absence  of  her  husband,  and, 
therefore,  with  the  exception  of  the  time  when  he  was 
compelled  to  be  in  court,  his  hours  were  invariably 
spent  with  her.  For  some  years  after  his  appointment, 
say  until  1810,  before  her  infirmity  became  confirmed, 
he  entered  into  social  and  convivial  parties,  and  shared 
fully  in  their  enjoyments ;  but  the  moment  he  found 
that  even  his  temporary  absence  disturbed  his  wife,  he 
abandoned  those  scenes  entirely,  and  from  thenceforth, 
apart  from  his  imperative  official  obligation,  he  seemed 
to  live  alone  for  her.  The  moment  the  clock  struck 
three,  the  hour  of  adjournment,  he  passed  immediately 
to  his  lodgings,  and  remained  there  until  next  morning 
at  ten  o'clock,  the  hour  of  meeting.  During  the  inter- 
vals of  official  labor  he  read  to  her,  conversed  with 
her,  and  consoled  her  in  all  her  actual  or  imaginary 
sufferings,  and,  in  short,  seemed  to  consider  it  a  matter 
of  happiness,  as  well  as  duty,  to  contribute  to  the 
gratification  of  all  her  caprices. 

Even  towards  the  close  of  life,  when  the  facilities  of 
travel  were  much  improved,  Mrs.  Washington,  who  had 
a  great  terror  of  railroads  or  steamboats,  always  insisted 
upon  accompanying  her  husband  upon  his  circuit.  The 
consequence  was,  that  he  was  condemned  twice  a  year 


BUSHROD    WASHINGTON.  357 

to  the  tedious  journey  from  Mount  Vernon  to  Philadel- 
phia, Trenton,  and  Pittsburg,  in  his  own  carriage  and 
with  his  own  servants,  a  matter  of  serious  delay  and  in- 
convenience. Still  he  never  complained,  and  if  he  were 
to  speak  of  it  in  her  presence,  it  was  rather  in  a  spor- 
tive than  repining  spirit.  She  became  thus  so  almost 
identified  with  him,  that  she  survived  him  but  twenty- 
four  hours.  He  died  on  the  26th  of  November,  1829,  and 
his  wife  died  suddenly  next  day,  on  the  road  near  Phila- 
delphia, while  following  his  remains  to  Mount  Vernon. 

The  conjugal  relations  of  Chief  Justice  Marshall 
somewhat  resembled  those  of  Judge  Washington,  and 
their  friendship  and  affection  towards  the  aged  and 
excellent  partners  of  their  bosoms  were  alike.  Mrs. 
Marshall  was  also  subject  to  serious  nervous  affec- 
tions, which  at  times  rendered  her  particularly  irri- 
table and  whimsical,  and  taxed  the  forbearance  and 
patience  of  her  husband  to  the  utmost.  This  great 
and  good  man,  however,  humored  her  in  every  possible 
way,  and  soothed  her  with  the  most  constant  and  in- 
exhaustible tenderness. 

Judge  Marshall  resided  near  the  Hill,  in  Richmond, 
and  it  so  happened,  that  a  miller  resided  in  the  same 
place  above  him.  The  miller  had  a  mill  some  dis- 
tance below  the  house  of  the  Chief  Justice,  which  he 
visited  every  morning  before  day-break,  upon  horse- 
back, making  no  inconsiderable  noise,  with  the  clatter- 
ing of  his  horse  along  the  pavement.  Mrs.  Marshall 


368  THE  FORUM. 

declared  that  this  disturbed  her  morning  rest,  and 
would  be  the  death  of  her,  and  with  an  overrated 
notion  of  the  power  of  a  Chief  Justice,  she  called 
upon  her  husband  to  put  an  end  to  this  annoyance, 
and  to  punish  its  author.  "  I  have  no  power  to  pun- 
ish," said  this  admirable  man,  "and  perhaps  I  have 
not  even  the  right  to  complain  of  a  man  in  the  regular 
pursuit  of  his  own  calling,  but  I  will  see  what  can  be 
done."  Accordingly,  he  called  the  next  day  upon  the 
miller,  praised  his  horse — asked  if  he  would  sell  him — 
the  price,  &c.  The  price  was  a  high  one,  but  he  be- 
came the  purchaser ;  yet  before  closing  the  purchase 
he  said  to  the  vendor,  that  he  desired  to  make  it 
part  of  the  contract  that — as  he  (the  miller,)  might 
get  another  horse — in  future,  he  would  visit  his  mill 
by  the  back  road,  and  not  pass  by  way  of  the  street. 
This  was  agreed  upon,  and  all  parties  were  satisfied. 

Judge  Washington  was  as  brave  as  he  was  modest, 
and  as  prudent  as  his  uncle.  Of  himself,  apart  from 
his  being  affined  to  the  greatest  man  that  "  ever  lived 
in  the  tide  of  time,"  he  would  have  been  an  object  of 
respect  and  veneration ;  but  still  it  cannot  be  denied, 
that  the  beloved  name  of  Washington  cast  a  halo  around 
his  brows,  and  while  at  the  same  time  that  it  gave  an 
earnest  of  a  godlike  nature,  exercised  an  influence 
over  the  public  opinion,  too  sacred  to  be  lightly  disre- 
garded or  invaded.  He  would  have  given  glory  to 
any  name — but  that  name  around  which  the  hearts  of 


BUSHROD    WASHINGTON.  359 

a  nation  clung,  was  sufficient  to  reflect  and  impart 
additional  glory,  even  upon  the  rarest  and  highest 
worldly  distinctions.  Added  to  this,  known  as  it  was, 
that  the  judge  was  the  favorite  relative  of  a  man,  who 
never  misplaced  his  favors  or  affections,  it  is  scarcely 
possible  to  conceive  of  any  prestiges  or  auspices  more 
favorable  than  those  which  he  enjoyed.  How  he  jus- 
tified and  fulfilled  them  all,  all  who  knew  him  must 
know ;  and  one  who  knew  him  well,  as  a  lawyer,  and 
who  was  himself  an  eminent  judge,  has  justly  portrayed 
his  character  in  the  following  eloquent  and  graceful  tri- 
bute to  his  memory.  It  is  so  much  better  than  any 
thing  we  could  say,  as  to  require  no  apology  for  its 
introduction ;  it  would  rather  require  an  apology  for 
its  omission. 

Judge  Hopkinson  thus  speaks  of  him,  in  a  discourse 
delivered  a  short  time  after  his  decease  :— 


"  Few,  very  few  men,  who  have  been  distinguished  on  the  judg- 
ment seat  of  the  law,  have  possessed  higher  qualifications,  natural 
and  acquired,  for  the  station,  than  Judge  Washington.  And  this  is 
equally  true,  whether  we  look  to  the  illustrious  individuals  who  have 
graced  the  Courts  of  the  United  States,  or  extend  the  view  to  the 
country  from  which  so  much  of  our  judicial  knowledge  has  been 
derived.  He  was  wise,  as  well  as  learned;  sagacious  and  searching 
in  the  pursuit  and  discovery  of  truth,  and  faithful  to  it  beyond  the 
touch  of  corruption,  or  the  diffidence  of  fear :  he  was  cautious,  con- 
siderate, and  slow  in  forming  a  judgment,  and  steady,  but  not  obsti- 
nate, in  his  adherence  to  it.  No  man  was  more  willing  to  listen  to 


370  THE  FORUM. 

an  argument  against  his  opinion ;  to  receive  it  with  candor,  or  to 
yield  to  it  with  more  manliness,  if  it  convinced  him  of  an  error.  He 
was  too  honest  and  too  proud,  to  surrender  himself  to  the  undue 
influence  of  any  man,  the  menaces  of  any  power,  or  the  seductions 
of  any  interest;  but  he  was  as  tractable  as  humility,  to  the  force  of 
truth ;  as  obedient  as  filial  duty,  to  the  voice  of  reason.  When  he 
gave  up  an  opinion,  he  did  it  not  grudgingly,  or  with  reluctant  quali- 
fications and  saving  explanations;  it  was  abandoned  at  once,  and  he 
rejoiced  more  than  any  one,  at  his  escape  from  it.  It  is  only  a  mind 
conscious  of  its  strength,  and  governed  by  the  highest  principles  of 
integrity,  that  can  make  such  sacrifices,  not  only  without  any  feeling 
of  humiliation,  but  with  unaffected  satisfaction." 

During  a  trial,  in  which  eminent  counsel  were  con- 
cerned— the  case  of  the  Atlantic — after  the  charge  of 
the  learned  Judge,  in  placing  certain  documents  before 
the  jury,  a  difference  arose  between  the  opposing 
counsel,  which  led  to  expressions  of  some  harshness, 
and  appeared  to  tend  to  something  like  an  open  rup- 
ture. For  a  moment,  Judge  Washington  supposing  it 
would  pass  over,  seemed  to  take  no  notice  of  it,  but 
as  the  altercation  increased  in  violence,  he  placidly 
and  mildly  turned  to  the  counsel  and  said,  in  a  sub- 
dued voice :  "  Gentlemen,  Philadelphia  is  celebrated 
throughout  the  Union,  for  the  talents  and  courtesy  of 
its  bar;  I  trust,  nay,  I  know,  that  you  would  be  unwil- 
ling to  be  considered  exceptions  to  that  character." 
All  difficulty  was  at  once  over,  and  the  Court  pursued 
its  business  as  if  nothing  had  occurred. 


BUSHROD    WASHINGTON.  371 

One  morning  at  the  Circuit  Court,  (at  that  time 
holding  its  session  in  Independence  Hall,)  in  the 
midst  of  an  important  cause,  a  gentleman  of  the  first 
eminence  at  the  bar,  rushed,  rather  than  walked,  into 
court,  and  in  a  loud  voice  appealed  to  Judge  Wash- 
ington and  all  the  bar  and  suitors,  to  accompany  him 
at  once  to  the  Centre  Square,  where  he  desired  to 
address  them  upon  the  attempted  overthrow  of  the 
American  Republic,  by  the  influence  of  foreign  govern- 
ments and  domestic  traitors,  through  their  emissaries 
amongst  us.  He  spoke  for  a  few  minutes,  and  then 
seizing  his  hat,  with  intense  excitement  rushed  into  the 
street.  He  was  a  great  favorite  with  the  bench  and 
the  bar ;  every  one  of  his  legal  brethren  seemed  utterly 
appalled.  The  only  individual  unmoved  was  Wash- 
ington, he  comprehended  the  whole  matter  at  a  glance ; 
he  listened  to  the  speaker  with  his  customary  atten- 
tion, turned  to  his  associate  apparently  to  consult,  as 
though  the  address  were  nothing  unusual ;  and  upon 
his  departure  simply  looking  to  the  bar,  directed  the 
case — which  was  upon  trial,  and  which  had  been  thus 
unhappily  interrupted — to  proceed,  as  though  nothing 
extraordinary  had  happened. 

During  the  trial  of  Lieutenant  Hand,  of  the  United 
States  Navy,  for  an  attack  upon  the  house  of  M.  Dash- 
koff,  the  Russian  minister,  several  foreign  ambassadors 
were  present;  some  of  them  as  witnesses.  Among 
them  was  Don  Onis,  the  minister  of  Spain.  At  his 


372  THE  FORUM. 

request,  Mr.  Alexander  James  Dallas,  at  that  time 
District-attorney  for  the  United  States,  mentioned 
publicly  to  the  Judge,  that  Don  Onis  was  in  attend- 
ance, but  not  in  compliance  with  a  subpoena  that  had 
been  issued.  "  It  is  well,"  replied  the  Judge ;  "  since 
he  is  here,  Mr.  Dallas,  it  is  scarcely  worth  while,  by 
inquiring  how,  to  agitate  a  national  question — let  the 
case  proceed." 

In  a  cause  of  great  magnitude,  in  which  the  law 
was  somewhat  counter  to  the  prejudice  or  sympathy 
of  the  case,  the  court  laid  down  the  legal  principles 
boldly  and  conclusively,  but  after  being  out  a  short 
time,  the  jury  gave  a  verdict  directly  against  the 
charge.  Mr.  Chauncey  rose  to  move  for  a  rule  for  a  new 
trial.  "  Take  your  rule,"  said  the  judge ;  "  but  all 
argument  is  unnecessary.  I  set  aside  the  verdict." 

But,  while  he  was  thus  resolute  in  regard  to  the 
law,  only  show  him  that  he  had  stated  a  fact  too 
strongly  for  one  party  or  the  other,  or  had  omitted 
any  portion  of  the  evidence  that  was  essential  to  a 
just  view  of  the  case,  and  he  was  just  as  prompt  to 
afford  relief  or  redress — holding  it,  in  the  language  of 
Lord  Mansfield,  to  be  more  magnanimous  to  retract 
when  wrong,  than  to  persist  in  error. 

When  he  delivered  a  charge,  it  was  not  in  the  form 
of  a  written  opinion,  but  of  a  speech,  with  his  eye  fixed 
upon  the  jury.  His  language  was  simple.  He  covered 
every  topic  that  belonged  to  him  as  a  judge,  and 


BUSHROD    WASHINGTON.  373 

avoided  everything  like  encroachments  upon  the  just 
privileges  of  the  jury.  Perhaps  he  was  the  only  judge 
whose  integrity  was  never  doubted  by  any  man ;  and 
the  only  judge  who,  in  the  entire  consciousness  of  his 
own  unswerving  rectitude,  would  not  have  regarded 
the  doubts  or  the  reproaches  of  the  whole  world. 

In  laying  down  the  law,  or  in  the  explanations  of 
its  technical  terms,  he  was  unequalled.  I  give  but  a 
single  instance  of  the  latter,  as  insfar  omnes.  In  the 
case  of  Murray  v.  Dupont,  3  Washington  C.  Court 
Reports,  page  37,  which  was  an  action  for  malicious 
prosecution,  in  which  the  probable  cause  was  ,as  usual 
the  turning  point,  he  gives,  in  a  few  words,  a  defini- 
tion which  no  words  can  improve.  "  Probable  cause," 
says  the  judge,  "  is  a  reasonable  ground  of  suspicion, 
supported  by  circumstances  sufficiently  strong  in  them- 
selves, to  warrant  a  cautious  man  in  the  belief,  that 
the  person  accused  is  guilty,  of  the  offence  with  which 
he  stands  charged." 

His  courage  was  equal  to  his  justice.  Unlike  those 
judges  who  talk  like  Csesar,  while  they  tremble  in 
their  shoes,  Washington  did  not  seem  to  be  sensible 
to  fear,  yet  he  was  the  last  person  to  say  so.  He 
never  spoke  of  fear,  because  he  never  knew  it ;  and 
courage,  so  far  from  being  a  matter  of  boast,  was,  with 
him,  but  another  word  for  duty.  Yet  with  all  these 
great  qualities,  he  was  so  modest  and  unpretending, 
that  the  encomium  passed  by  Governor  Dinwiddie 


374  THE  FORUM. 

upon  General  Washington,  in  his  youth,  "  Your  mo- 
desty is  only  equalled  by  your  merit,"  was  equally 
applicable  to  his  nephew.  His  whole  life  was  a  prac- 
tical exemplification  of  his  lofty  moral  feeling ;  and  it 
would  seem,  therefore,  to  be  unnecessary  to  invoke 
special  instances  of  the  humility  and  grandeur — mode- 
ration and  magnanimity  of  his  character.  But  there 
is  one  case — a  perilous  case — in  which  the  qualities 
to  which  we  have  referred  were  eminently  displayed. 
We  refer  to  the  case  of  the  United  States  v.  Michael 
Bright,*  with  a  brief  notice  of  which  we  shall  conclude 
this  hasty  and  scanty  memoir. 

"  During  the  war  of  our  revolution,  Gideon  Olmstead  and  others, 
having  fallen  into  the  hands  of  the  enemy,  were  put  on  board  of  a 
British  sloop,  as  prisoners  of  war,  to  be  conducted  to  New  York. 
During  the  passage,  Olmstead  and  his  companions  rose  on  the  British 
crew,  took  the  vessel,  and  steered  for  a  port  in  the  United  States. 
When  within  five  miles  of  the  port,  a  brig  belonging  to  the  State  of 
Pennsylvania,  came  up  with  them  and  captured  the  sloop  as  a  prize. 
She  was  brought  to  Philadelphia,  and  there  libelled  in  the  Court  of 
Admiralty  of  the  State.  Olmstead  and  his  associates  filed  their 
claim,  and  a  judgment  was  rendered,  giving  one-fourth  of  the  prize 
to  them,  and  the  remainder  to  the  brig,  that  is,  to  the  State  of  Penn- 
sylvania, her  owner.  Olmstead  appealed  to  the  Court  of  Appeals, 
established  by  Congress,  where  the  sentence  of  the  Court  of  Admi- 
ralty was  reversed,  and  the  whole  prize  decreed  to  Olmstead ;  and 

*  The  statement  of  this  case  is  chiefly  taken  from  Judge  Hopkinson's 
Eulogy  upon  Washington. 


BUSHROD    WASHINGTON.  375 

process  was  issued,  directing  the  marshal  to  sell  the  vessel  .and  cargo, 
and  pay  the  proceeds  accordingly. 

"  The  Judge  of  the  Court  of  Admiralty  delivered  to  David  Rltten- 
house,  then  Treasurer  of  the  State,  the  sum  to  which  the  State  was 
entitled  by  the  judgment  of  that  Court,  but  which  by  the  decree  of 
reversal  belonged  to  Olmstead.  This  money,  in  the  form  of  certifi- 
cates, was  in  the  possession  of  Mr.  Bittenhouse  at  the  time  of  his 
death,  and  then  came  into  the  hands  of  his  daughters,  as  his  repre- 
sentatives. The  property  was  in  this  situation  when  Olmstead  filed 
his  libel  in  the  District  Court  of  the  United  States,  then  established 
under  the  new  constitution,  praying  for  the  execution  of  the  decree 
of  the  Court  of  Appeals.  A  decree  was  given  by  the  District  Court, 
according  to  the  prayer  of  the  libel.  This  was  in  January,  1803. 
Thus  far  the  State  of  Pennsylvania  had  made  no  movement  to  assert 
her  claim ;  but  it  was  now  necessary  for  her  either  to  surrender  her 
pretensions  to  this  money,  or  to  come  forward  and  defend  her  citi- 
zens, who  were  holding  it  only  for  her  use,  and  in  doing  so  were 
exposed  to  the  whole  power  of  the  federal  judiciary.  Accordingly, 
on  the  second  of  April,  1803,  an  act  was  passed  by  the  legislature 
of  Pennsylvania,  requiring  the  representatives  of  Mr.  Bittenhouse  to 
pay  the  money  into  the  State  Treasury,  and  directing  a  suit  against 
them  should  they  refuse.  The  governor  of  the  State  was  also  re- 
quired to  protect  the  just  rights  of  the  State,  by  any  further  mea- 
sures he  might  deem  necessary;  and  also  to  protect  the  persons  and 
property  of  the  ladies  from  any  process  which  might  issue  out  of  the 
federal  court,  in  consequence  of  their  obedience  to  this  requisition. 
The  act  of  assembly  declared  the  exercise  of  jurisdiction  by  the 
Court  of  Appeals  was  illegally  usurped,  in  contradiction  to  the  just 
rights  of  Pennsylvania;  and  that  the  decree  of  reversal  was  null 
and  void ;  so  of  the  decree  of  the  District  Court.  Pause  for  a  mo- 
ment to  observe  the  awful  positions  in  which  these  two  sovereignties 
— that  of  the  United  States  and  that  of  Pennsylvania — are  now 


376  THE  FORUM. 

placed.  The  United  States  were  bound  to  support,  with  their  whole 
force,  the  execution  of  the  judgment  of  their  court ;  and  the  governor 
of  Pennsylvania  was  ordered  by  its  legislature  to  resist  the  execution 
of  that  judgment  with  the  whole  force  of  the  State.  We  tremble 
even  now  to  look  back  at  the  precipice  on  which  we  stood.  A  false 
step  on  either  side  might  have  been  ruin  to  both.  Nothing  but  the 
most  calm  and  consummate  prudence,  the  most  disinterested  and 
magnanimous  patriotism,  could  have  brought  us  safely  through  this 
mortal  crisis. 

"  The  District  Court  of  the  United  States  hesitated  to  proceed. 
The  question  was  one  of  great  delicacy ;  the  anticipated  conflict  ter- 
rible in  the  extreme.  The  process  was  suspended,  that  the  case 
might  be  submitted  to  the  Supreme  Court;  which,  after  a  hearing, 
stood  firmly  to  the  constitution  and  the  law,  and  commanded  the 
District  Judge  to  issue  the  process  required.  It  was  issued.  With 
what  an  agonizing  anxiety  the  result  was  awaited.  Was  a  civil  war 
to  tear  the  entrails  of  the  State  ?  and  citizen  to  meet  citizen  in  a 
deadly  strife  ?  Was  our  happy  and  prosperous  career  doomed  to 
be  so  short  ?  Was  this  glorious  Union  to  dissolve  in  blood,  after  a 
few  years,  which  had  proved  its  unparalleled  excellence;  had 
poured,  plenteously,  bounties  upon  our  land ;  had  raised  us  from 
weakness,  poverty,  and  obscurity,  to  the  power  and  dignity  of  a 
great  nation :  which  had  given  liberty,  security,  and  wealth  to  a 
virtuous  and  industrious  people  ?  was  all  to  be  shattered  and  lost  in 
an  unnatural  conflict  ?  The  process  was  issued ;  and  the  omcer  of 
the  court  had  no  choice  but  to  execute  it ;  and  to  compel  obedience 

ta " 

to  it  by  the  means  given  to  him  by  the  law.  General  Michael 
Bright,  commanding  a  brigade  of  the  militia  of  Pennsylvania,  re- 
ceived orders  from  the  Governor  immediately  to  have  in  readiness 
such  a  portion  of  the  militia  under  his  command  as  might  be  neces- 
sary to  execute  the  orders,  and  to  employ  them  to  protect  and  de- 
fend the  persons  and  property  of  the  representatives  of  Mr.  Kitten- 


BUSHROD    WASHINGTON.  377 

house  from  and  against  any  process  founded  on  the  decree  of  the 
District  Court  of  the  United  States.  A  guard  was  accordingly 
placed  by  General  Bright  at  the  houses  of  these  ladies  j  and  he, 
with  the  other  defendants  in  the  indictment,  opposed,  with  force,  the 
efforts  of  the  marshal  to  serve  the  writ  issued  to  him.  The  process, 

however,  was  served:  and  the  Strife  relieved  the  ladies,  not  by 

x*"2$ 

waging  war  upon  the  United  States^but  by  paying  the  money  ac- 
cording to  the  judgment  of  the  court.  This  is  enough  of  the  history 
of  this  interesting  case  for  our  present  object.  It  was  for  this  re- 
sistance to  the  process  of  a  Court  of  the  United  States,  that  General 
Bright,  and  others  of  his  party,  were  indicted,  and  brought  to  trial 
before  Judges  Washington  and  Peters,  holding  a  Circuit  Court  of 
the  United  States." 


In  the  course  of  the  trial,  and  in  deciding  the  various 
questions  of  law  which  arose  in  it,  the  extraordinary 
judicial  qualifications  of  our  Judge  were  shown  in  full 
relief.  His  learning,  his  patient  hearing,  his  clear  and 
discriminating  sagacity;  and  above  all,  his  unhesitating 
fearlessness,  were  all  conspicuous.  No  judge  was  ever 
better  entitled  to  exclaim,  "  Fiat  justitia  ;  mat  ccelwn" 

This  cause  lasted  several  weeks,  during  all  which  time 
there  was  the  greatest  popular  agitation.  Rumors,  ter- 
rors, and  threats  of  every  kind,  were  put  into  cir-  *• 
culation.  The  State-right's  men  affected  to  hold  the 
power  of  the  general  government  in  contempt,  and  the 
authority  of  the  Court  in  derision.  It  was  publicly 
proclaimed,  that  Judge  Washington  would  never  dare 
to  charge  against  the  defendants;  or  to  pronounce  sen- 

VOL.  i. — 25 


378  THE  FORUM. 

tence  against  them,  if  they  were  convicted.  But  the 
people  did  not  know  him,  they  were  incapable  of  appre- 
ciating his  rare  moral  and  judicial  qualities.  He  was 
too  intrepid  to  be  bullied — and  he  DID  charge  decidedly 
against  the  defendants ;  they  WERE  convicted,  and  he 
SENTENCED  them.  There  is  one  circumstance  connected 
with  this  trial  which  is  entitled  to  be  noticed,  in  the 
conclusion  of  this  memoir. 

Upon  the  close  of  the  speeches  of  the  counsel,  a 
vast  multitude  of  anxious  auditors,  and  many  of  those 
who  maintained,  that  the  Judge  would  at  last  shrink 
from  a  conviction,  assembled  in  the  room  where  the 
Court  then  sat,  (the'  same  room  now  occupied  by  the 
District  Court  of  Philadelphia,  up  stairs .)  The  argument 
being  ended,  the  Judge  turning  to  the  crier,  said  to 
him,  in  the  mildest  and  most  composed  way,  "Adjourn 
the  Court,  to  meet  to-morrow  morning,  in  the  room  on 
the  ground  floor  of  this  building.  This  is  an  important 
case — the  citizens  manifest  a  deep  interest  in  its  result, 
and  it  is  but  right  that  they  should  be  allowed,  without 
too  much  inconvenience  to  witness  the  administration  of 
the  justice  of  the  country;  to  which,  ALL  MEN,  GREAT  AND 

SMALL,  ARE  ALIKE  BOUND  TO  SUBMIT." 


CHAPTER  VI. 

WILLIAM    TILGHMAN,  L.L.D., 

BORN,  AUGUST,  1756— APPOINTED  CHIEF  JUSTICE,  1806— DIED,  APEIL,  1827. 

IN  the  biography  of  Chief  Justice  Tilghman,  we  have 
drawn  extensively  upon  the  eulogy  pronounced  by  Mr. 
Binney,  and  we  rely  for  our  justification  in  doing  so, 
upon  two  considerations.  First,  that  the  characteristic 
circumstances  of  the  life  of  the  Chief  Justice  are  therein 
more  authentically  set  out;  and  secondly,  because  the 
style  and  merit  of  the  eulogist  are  almost  as  deserving 
of  admiration,  as  the  virtues  which  he  commemorates. 
The  chief  difficulty  encountered  in  this  part  of  our 
work,  is  in  making  any  selection  or  extracts  from  a 
production,  in  which  all  the  parts  are  so  admirably 
fitted  and  adjusted,  as  to  be  essential  to  each  other, 
and  to  be  equally  entitled  to  regard.  Like  severing 
the  Graces,  in  destroying  the  grouping  you  impair  the 


380  THE  FORUM. 

beauty,  symmetry,  and  effect  of  each  individual  figure. 
When  Dr.  Johnson,  among  his  Lives  of  the  Poets,  in- 
troduces that  of  Dr.  Parnell,  he  does  so  with  these 
remarks :  "  This  is  a  task  which  I  should  very  wil- 
lingly decline,  since  the  life  of  Parnell  has  been  lately 
written  by  Goldsmith,  a  man  of  such  variety  of  power 
and  such  felicity  of  performance,  that  he  always  seemed 
to  do  best  that  which  he  was  doing ;  a  man  who  had 
the  art  of  being  minute,  without  tediousness ;  and 
general,  without  confusion ;  whose  language  was  copi- 
ous, without  exuberance ;  and  easy,  without  weakness ; 
what  such  an  author  has  told,  who  would  tell  again  ?" 
If  Dr.  Johnson,  with  this  preface,  satisfied  himself 
with  an  abstract  from  the  production  of  one  whom  he 
thus  praised,  we  certainly  require  no  apology  for  our 
drafts  upon  the  labors  and  learning  of  such  a  man  as 
Binney.  Besides,  the  admirable  eulogy  referred  to, 
with  the  exception  of  its  insertion  in  the  fifteenth  vol- 
ume of  Sergeant  and  Rawle's  Reports,  may  be  consi- 
dered as  out  of  print;  and  assuredly,  those  who  have 
heard  it,  or  read  it,  and  know  its  value,  would  not 
willingly  acquiesce  in  its  loss.  Substantially  pre- 
senting it  in  this  shape,  although  it  can  add  nothing 
to  the  fame  of  its  author,  and  is  by  no  means  ne- 
cessary to  the  memory  of  the  departed,  it  will  undoubt- 
edly give  value  to  this  work,  so  as  to  leave  us  at 
some  loss  to  determine,  whether  we  are  influenced  in 
what  we  thus  do,  by  sordid  selfishness,  generous  sym- 


WILLIAM    TILGHMAN,    L.L.D.  33} 

pathy,  or  the  spontaneous  admiration  of  genius  and 
virtue. 

The  law,  let  it  be  remembered,  is  the  only  sovereign 
in  a  republic.  The  judge  is  the  right  hand  of  the  law, 
and  the  ruler  of  the  people,  and  in  the  language  of 
Divine  inspiration,  "  He  that  ruleth  over  men,  must  be 
just ;  ruling  in  the  fear  of  God.  We  should  provide 
out  of  all  the  people,  able  men,  such  as  fear  God — men 
of  truth,  hating  covetousness,  and  place  them  over  men, 
and  let  them  judge  them."  Men,  unlike  Felix,  looking 
for  money,  that  he  might  loose  Paul ;  or  leaving  his 
prisoner  in  bonds,  that  he  might  show  the  populace  a 
favor.  Unlike  Pilate,  sacrificing  the  innocent  to  the 
rampant  and  unholy  clamor  of  a  bloodthirsty  mob. 
Unlike  the  "  atrocious  Star-Chamber  Judges,"  who,  to 
serve  the  king,  or  gratify  their  own  cruelty,  trampled 
upon  all  laws,  divine  and  human,  and  recklessly  and  wan- 
tonly sacrificed  some  of  the  noblest  of  the  human  race. 
And  if  there  ever  was  a  man  whose  principles  and 
practice  were  modelled  in  strict  conformity  to  these 
requirements,  it  was  the  subject  of  this  sketch,  to 
whom  the  attention  of  all  men — and  especially  of  the 
judiciary — is  earnestly  recommended. 

WILLIAM  TILGHMAN  was  born  on  the  twelfth  of  Au- 
gust, 1756,  upon  the  estate  of  his  father,  in  Talbot 
county,  on  the  Eastern  shore  of  Maryland. 

His  paternal  great-grandfather,  Richard  Tilghman, 
emigrated  to  that  Province  from  Kent  county,  in  Eng- 


THE    FORUM. 

land, '  about  the  year  1662,  and  settled  on  Chester 
river,  in  Queen  Ann's  county. 

His  father,  James  Tilghman,  a  distinguished  lawyer, 
is  well  known  to  the  Profession  in  Pennsylvania,  as 
Secretary  of  the  Proprietary  Land-office. 

His  maternal  grandfather  was  Tench  Francis,  the 
elder,  of  this  city,  one  of  the  most  eminent  lawyers 
of  the  Province,  the  brother  of  Richard  Francis,  au- 
thor of  "Maxims  of  Equity,"  and  of  Dr.  Philip  Francis, 
the  translator  of  Horace. 

He  entered  college  in  the  year  1769 ;  Dr.  Smith 
being  then  the  Provost,  and  Dr.  Francis  Allison,  the 
Vice-provost,  the  latter  of  whom  instructed  the  stu- 
dents in  the  higher  Greek  and  Latin  classics;  and 
such  was  the  devotion  to  literature,  of  the  eminent 
pupil  of  whom  we  are  speaking,  that  after  he  had 
received  the  Bachelor's  degree,  and  was  in  the  ordi- 
nary sense,  prepared  for  a  profession;  he  continued 
for  some  time  to  read  the  classics,  with  the  benefit  of 
Dr.  Allison's  prelections. 

In  February,  1772,  he  began  the  study  of  the  law 
in  this  city,  under  the  direction  of  the  late  Benjamin 
Chew,  then  at  the  head  of  his  profession,  afterwards 
Chief  Justice  of  the  Supreme  Court  of  Pennsylvania, 
and  at  the  close  of  the  High  Court  of  Errors  and  Ap- 
peals, its  venerable  President. 

From  1776  to  1783,  partly  on  his  father's  estate, 
and  partly  at  Chestertown,  whither  his  family  had 


WILLIAM    TILGHMAN,    L.L.D.  333 

removed,  he  continued  to  pursue  his  legal  studies, 
reading  deeply  and  laboriously,  as  he  has  himself  re- 
corded, and  applying  his  intervals  of  leisure  to  the 
education  of  a  younger  brother. 

In  1788,  and  for  some  successive  years,  he  was 
elected  a  representative  to  the  legislature  of  Maryland. 

In  1793,  a  few  months  previous  to  his  marriage 
with  Miss  Margaret  Allen,  the  daughter  of  Mr.  James 
Allen,  he  returned  to  this  city,  and  commenced  the 
practice  of  the  law,  which  he  prosecuted  until  his 
appointment  by  President  Adams,  on  the  3d  of  March, 
1801,  as  Chief  Judge  of  the  Circuit  Court  of  the  United 
States  for  this  circuit. 

The  Court  in  which  his  judicial  ability  was  first 
made  known,  had  but  a  short  existence.  It  was 
established  at  the  close  of  the  second  administration 
of  our  government ;  and  although  this  particular  mea- 
sure was  deemed  by  wise  men  on  all  sides,  and  is  still 
cited  by  many  of  them  as  the  happiest  organization  of 
the  federal  judiciary,  yet,  having  grown  up  amid  the 
contentions  of  party,  it  was  not  spared  by  that,  which 
spares  nothing.  In  a  year  after  its  enactment,  the  law 
which  erected  the  court  was  repealed ;  and  the  judges 
who  had  received  their  commissions  during  good  beha- 
vior, were  deprived  of  their  offices,  without  the  impu- 
tation of  a  fault. 

After  the  abolition  of  the  Circuit  Court,  Mr.  Tilgh- 
man  resumed  the  practice  of  his  profession,  and  con- 


384  THE  FOKUM. 

tinued  it  until  the  thirty-first  of  July,  1805,  when  he 
was  appointed  president  of  the  Court  of  Common 
Pleas  in  the  First  District. 

He  remained  but  a  few  months  in  the  Common  Pleas. 
In  the  beginning  of  the  year  1806,  Mr.  Shippen,  the 
Chief  Justice  of  the  Supreme  Court,  yielded  to  the 
claims  of  a  venerable  old  age  by  retiring  from  the  office, 
and  on  the  twenty-fifth  of  February,  Mr.  Tilghman  was 
commissioned  in  his  place  by  Governor  M'Kean,  him- 
self a  great  lawyer  and  judge,  and  interested  as  a  father, 
in  the  court  which  he  had  led  on  to  distinguished  repu- 
tation in  the  United  States. 

From  the  time  that  he  took  his  seat  on  the  bench, 
at  March  term,  1806,  for  the  space  of  more  than  ten 
years,  he  delivered  an  opinion  in  every  case  but  five; 
the  arguments  in  four  of  which  he  was  prevented  from 
hearing  by  sickness,  and  in  one  by  domestic  affliction; 
and  in  more  than  two  hundred  and  fifty  cases,  he  either 
pronounced  the  judgment  of  the  court,  or  his  brethren 
concurred  in  his  opinion  and  reasons  without  a  com- 
ment. 

His  attention,  from  the  beginning  to  the  end  of  the 
twenty-one  years  that  he  presided  in  the  Supreme 
Court,  was  undeviatingly  given  to  every  case ;  and  he 
prepared  himself  for  all  that  required  consideration  at 
his  chamber,  by  taking  an  accurate  note  of  the  autho- 
rities cited  by  counsel,  and  of  the  principal  heads  and 
illustrations  of  their  arguments. 


WILLIAM    TILGHMAN,    L.L.D.  335 

In  addition  to  these  strictly  official  duties,  the  legis- 
lature of  Pennsylvania  committed  to  the  judges  of  the 
Supreme  Court,  in  the  year  1807,  the  critical  duty  of 
reporting  the  English  statutes  in  force  in  this  Common- 
wealth. The  duty  is  called  critical,  for  so  undoubtedly 
it  was  considered  by  the  chief  justice. 

The  labors  thus  recited,  entitle  this  eminent  judge 
to  the  praise  of  great  industry ;  a  virtue  which  it  is  an 
offence  against  morality  to  call  humble,  in  one  who  is 
the  keeper  both  of  his  own  talents,  and,  not  seldom, 
of  that  of  others  also.  It  was,  however,  industry  of 
the  highest  order — a  constant  action  of  the  intellect, 
practically  applied. 

Chief  Justice  Tilghman  could  have  done  as  much 

with  this  bar,  by  the  force  of  his  authority,  as  any 

judge  that  ever  sat  in  his  seat.     His  investigations 

were  known  to  be  so  faithful,  his  reasoning  so  just, 

and  his  convictions  so  impartial,  that  there  would  have 

been  a  ready  acceptance  of  his  conclusions,  without  a 

knowledge  of  the  steps  that  led  to  them.     He  asked, 

however,  for  submission  to  no  authority  so  rarely  as 

to  his  own.     You  may  search  his  opinions  in  vain  for 

anything  like  personal  assertion.     He  never  threw  the 

weight  of  his  office  into  the  scale,  which  the  weight  of 

his  argument  did  not  turn.     He  spoke  and  wrote  as 

the  minister  of  reason,  claiming  obedience  to  her,  and 

selecting  with  scrupulous  modesty  such  language  as, 

while  it  sustained  the  dignity  of  his  office,  kept  down 


386  THE  FORUM. 

from  the  relief,  in  which  he  might  well  have  appeared, 
the  individual  who  filled  it.  Look  over  the  judgments 
of  more  than  twenty  years,  many  of  them  rendered 
by  this  excellent  magistrate,  after  his  title  to  unlimited 
deference  was  established  by  a  right  more  divine  than 
kings.  There  is  not  to  be  found  one  arrogant — one 
supercilious  expression,  turned  against  the  opinions 
of  other  judges ;  one  vain-glorious  regard  towards  him- 
self. He  does  not  write  as  if  it  occurred  to  him  that 
his  writings  would  be  examined  to  fix  his  measure, 
when  compared  with  the  standard  of  great  men,  but 
as  if  their  exclusive  use  was  to  assist  in  fixing  a  stand- 
ard of  the  law. 

But  his  great  work,  that  at  which  he  labored  with 
constant  solicitude,  but  with  scarcely  a  passing  hint 
that  he  was  engaged  in  it,  is  the  thorough  incorporation 
of  the  principles  of  scientific  equity  with  the  law  of 
Pennsylvania,  or  rather  the  reiterated  recognition  of 
the  bench,  that,  with  few  exceptions,  they  form  an 
inseparable  part  of  that  law. 

The  distinction  of  law  and  equity  is  well  understood 
by  the  profession,  but  difficult  to  explain  to  popular 
apprehension.  It  is  a  great  but  prevalent  mistake,  to 
suppose  that  a  court  of  equity  is  the  reproach  of  the 
common  law,  whereas  it  is  its  praise — at  least  the 
praise  of  its  illustrious  origin.  The  common  law,  being 
originally  the  law  of  freemen,  of  that  Saxon  stock  from 
which  is  derived  the  freest  race  upon  earth,  left  nothing 


WILLIAM    TILGHMAN,    L.L.D. 

to  the  discretion  of  the  judge  or  the  monarch.  It  was 
itself  the  great  arbiter,  and  ruled  every  question  by 
principles  of  great  certainty  and  general  application. 
In  its  earliest  day,  a  day  of  comparative  simplicity,  its 
general  principles  and  forms  embraced  and  adjusted 
almost  every  transaction ;  and  when  they  did  not,  the 
authority  of  the  common  law  courts  was  legitimately 
extended  by  new  writs,  devised  in  the  then  incipient 
chancery. 

In  the  department  of  penal  law,  he  was  relieved  by 
his  office  from  frequent  labors,  although  he  annually 
presided  in  a  Court  of  Oyer  and  Terminer  for  this 
county.  His  knowledge  of  this  branch  of  the  law  was 
extensive  and  accurate.  His  judgment  in  it,  as  in 
every  other,  was  admirable.  His  own  exemption  from 
moral  infirmity  might  be  supposed  to  have  made  him 
severe  in  his  reckonings  with  the  guilty ;  but  it  is  the 
quality  of  minds  as  pure  as  his  to  look  with  compassion 
upon  those  who  have  fallen  from  virtue.  He  could 
not  but  pronounce  the  sentence  of  the  law  upon  such 
as  were  condemned  to  hear  it;  but  the  calmness,  the 
dignity,  the  impartiality,  with  which  he  ordered  their 
trials ;  the  deep  attention  which  he  gave  to  such  as 
involved  life,  and  the  touching  manner  of  his  last  office 
to  the  convicted,  demonstrated  his  sense  of  the  peculiar 
responsibility  which  belonged  ta  this  part  of  his  func- 
tions. In  civil  controversies,  such  excepted  as,  by 
some  feature  of  injustice,  demanded  a  notice  of  the 


388  THE  FORUM. 

parties,  he  reduced  the  issue  pretty  much  to  an  abstract 
form,  and  solved  it  as  if  it  had  been  an  algebraic  pro- 
blem. But  in  criminal  cases,  there  was  a  constant 
reference  to  the  wretched  persons  whose  fate  was  sus- 
pended before  him;  and  in  the  very  celerity  with 
which  he  endeavored  to  dispose  of  the  accusation,  he 
evinced  his  sympathy.  It  was  his  invariable  effort, 
without  regard  to  his  own  health,  to  finish  a  capital 
case  at  one  sitting,  if  any  portion  of  the  night  would 
suffice  for  the  object ;  and  one  of  his  declared  motives 
was  to  terminate  as  soon  as  possible  that  harrowing 
solicitude,  worse  even  than  the  worst  certainty,  which 
a  protracted  trial  brings  to  the  unhappy  prisoner.  He 
never  pronounced  the  sentence  of  death  without  severe 
pain;  in  the  first  instance,  it  was  the  occasion  of 
anguish.  In  this,  as  in  many  other  points,  he  bore  a 
strong  resemblance  to  Sir  Matthew  Hale.  His  awful 
reverence  of  the  great  Judge  of  all  mankind,  and  the 
humility  with  which  he  habitually  walked  in  that  pre- 
sence, made  him  uplift  the  sword  of  justice,  as  if  it 
scarcely  belonged  to  man — himself  a  suppliant — to  let 
it  fall  on  the  neck  of  his  fellow  man. 

The  practice  of  the  law  is  not  without  its  trials  to  a 
judge  of  the  happiest  temper.  The  efficiency  of  the 
advocate,  in  some  causes,  depends  upon  his  giving  the 
rein  to  his  ardor,  and  in  moving  with  a  velocity  which 
kindles  others  as  well  as  himself.  These  rapid  move- 
ments are  unfriendly  to  a  nice  selection  of  phrases, 


WILLIAM    TILGHMAN,    L.L.D. 

and  to  that  deference  to  the  opposing  sentiments  of 
the  court,  which  the  due  order  of  a  judicial  tribunal 
demands.  It  argues  little  against  the  judge  or  the 
advocate,  that  in  cases  like  these,  there  should  be  mo- 
mentary lapses  of  temper.  But  whose  memory  is  so 
unfaithful  as  to  record  one  such  incident  in  the  judicial 
life  of  Chief  Justice  Tilghman?  He  knew  the  respect  of 
the  bar  for  him  to  be  so  cordial,  that  he  never  suspected 
offence ;  and  they  knew  his  integrity  and  fidelity  to 
the  law  to  be  such,  that  they  never  placed  his  judg- 
ment, on  any  occasion,  to  the  account  of  prejudice, 
partiality,  or  impulse.  The  reign  of  sound  law  and 
impartial  justice  in  the  Supreme  Court  of  the  State, 
has  therefore  been  the  reign  of  courtesy  and  kindly 
feelings  between  the  bench  and  the  bar ;  and  though 
dead,  he  will  continue  to  speak,  as  if  living,  in  favor 
of  this  natural  and  delightful  union. 

Upon  the  whole,  his  character,  as  a  judge,  was  a 
combination  of  some  of  the  finest  elements  that  have 
been  united  in  that  office.  Among  those  which  may 
be  regarded  as  primary  or  fundamental,  were  a  rever- 
ential love  of  common  law,  and  a  fervent  zeal  for  jus- 
tice, as  the  end  and  intended  fruit  of  all  law.  The 
former  was  enlightened  by  laborious  study  in  early 
life,  the  latter  was  purified,  like  the  constitution  of  his 
whole  mind,  by  a  ceaseless  endeavor  to  ascertain  the 
truth.  In  the  service  of  these  exalted  affections  he 
never  faltered.  His  effort  in  every  cause  was  to 


390  "THE    FORUM. 

satisfy  them  both ;  and  by  attention  to  the  researches 
of  others,  patient  inquiry  for  himself,  and  a  judgment 
singularly  free  from  disturbance  of  every  kind,  he 
rarely  failed  to  attain  his  object.  Other  judges  may 
have  had  more  learning  at  immediate  command, — none 
have  had  their  learning  under  better  discipline,  or  in  a 
condition  more  effective  for  the  duty  on  which  it  was 
employed.  His  mind  did  not  flow  through  his  opinions 
in  a  stream  of  exuberant  richness,  but  its  current  was 
transparently  clear,  and  its  depth  was  never  less  than 
the  subject  required,  however  profound.  He  was, 
moreover,  equal  to  all  the  exigencies  of  his  office,  and 
many  of  them  were  great,  without  any  such  exertion 
which  appeared  to  disturb  the  harmony,  or  even  the 
repose,  of  his  faculties ;  and  he  has  finally  laid  down 
his  great  charge,  with  the  praise  of  being  second  to 
none  who  preceded  him  in  it,  and  of  leaving  his  coun- 
trymen without  the  expectation  or  the  desire  of  seeing 
him  surpassed  by  those  who  shall  follow  him. 

His  moral  qualities  were  of  the  highest  order.  It 
has  been  said,  that  the  panegyrists  of  great  men  can 
rarely  direct  the  eye  with  safety  to  their  early  years, 
for  fear  of  lighting  upon  the  traces  of  some  irregular 
passion.  But  to  the  subject  of  this  discourse  may 
with  justice  be  applied  the  praise  of  the  Chancellor 
De  Aguesseau,  that  he  was  never  known  to  take 
a  single  step  out  of  the  narrow  path  of  wisdom ; 
and  that,  although  it  was  sometimes  remarked  he 


WILLIAM    TILGHMAN,    L.L.D. 

had  been  young,  it  was  for  the  purpose  not  of  pal- 
liating a  defect,  but  of  doing  greater  honor  to  his 
virtues. 

Of  his  early  life,  few  of  his  cotemporaries  remain  to 
speak ;  but  those  few  attest,  what  the  harmony  of  his 
whole  character  in  latter  years  would  infer,  that  his 
youth  gave  presage,  by  its  sobriety  and  exemplary 
rectitude,  of  all  that  we  witnessed  and  admired  in  the 
maturity  of  his  character.  It  is  great  praise  to  say  of 
so  excellent  a  judge,  that  there  was  no  contrariety  be- 
tween his  judgments  and  his  life, — that  there  was  a 
perfect  consent,  between  his  public  and  his  private 
manners, — that  he  was  an  engaging  example  of  all  he 
taught, — and  that  no  reproach,  which,  in  his  multifa- 
rious employment,  he  was  compelled  to  utter  against 
all  the  forms  of  injustice,  public  and  private,  social  and 
domestic, — against  all  violations  of  law,  from  crime 
down  to  those  irregularities  at  which,  from  general  in- 
firmity, there  is  a  general  connivance, — in  no  instance, 
did  the  sting  of  his  reproach  wound  his  own  bosom. 
Yet  it  was  in  his  life  only,  and  not  in  his  pretensions, 
that  you  discerned  this  his  fortunate  superiority  to 
others.  In  his  private  walks  he  was  the  most  unpre- 
tending of  men.  He  bore  constantly  about  him  those 
characteristics  of  true  greatness,  simplicity  and  mo- 
desty. Shall  I  add,  that  the  memory  of  all  his  ac- 
quaintance may  be  challenged  to  repeat,  from  his  most 
unrestrained  conversation,  one  word  or  allusion,  that 


392  THE  FORUM. 

might  not  have  fallen  with  propriety  upon  the  ear  of 
the  most  fastidious  delicacy. 

The  temper  of  the  Chief  Justice  was  singularly 
placable  and  benevolent.  It  was  not  in  his  power  to 
remember  an  injury.  A  few  days  before  his  death, 
he  said  to  two  of  his  friends,  attendant  upon  that 
scene,  "  I  am  at  peace  with  the  world.  I  bear  no  ill- 
will  to  any  human  being ;  and  there  is  no  person  in 
existence  to  whom  I  would  not  do  good,  and  render  a 
service,  if  it  were  in  my  power.  No  man  can  be* 
happy  who  does  not  forgive  injuries  which  he  may 
have  received  from  his  fellow-creatures." 

On  the  last  anniversary  that  he  ever  saw,  he  begins 
his  paper  with  the  prophetic  declaration, 

/ 

"  This  day  completes  my  seventieth  year,  the  period  which  is  said 
to  bound  the  life  of  man.  My  constitution  is  impaired,  but  I  can- 
not sufficiently  thank  God  that  my  intellects  are  sound,  that  I  am 
afflicted  with  no  painful  disease,  and  that  sufficient  health  remains 
to  make  life  comfortable.  I  pray  for  the  grace  of  the  Almighty,  to 
enable  me  to  walk  during  the  short  remnant  of  life  in  his  ways. 
Without  his  aid,  I  am  sensible  that  my  efforts  are  unavailing.  May 
I  submit  with  gratitude  to  all  his  dispensations ;  never  forget  that  he 
is  the  witness  of  my  actions,  and  even  of  my  thoughts,  and  endeavor 
to  honor,  love,  and  obey  him,  with  all  my  heart,  soul  and  strength." 

That  "  remnant  of  life"  to  which  his  last  memorial 
refers,  unfortunately  for  us,  was  short,  as  he  had  pre- 
dicted ;  but  he  walked  it  as  he  had  done  all  that  went 


WILLIAM    TILGHMAN,    L.L.D.  393 

before,  according  to  his  devout  aspiration.  He  conti- 
nued to  preside  in  the  Supreme  Court  with  his  accus- 
tomed dignity  and  effect,  until  the  succeeding  winter, 
when  his  constitution  finally  gave  way,  and  after  a  short 
confinement,  on  Monday,  the  thirtieth  of  April,  1827, 
he  closed  his  eyes  for  ever.  It  will  be  long,  very  long, 
before  we  shall  open  ours  upon  a  wiser  judge,  a  sounder 
lawyer,  a  riper  scholar,  a  purer  man  or  a  truer  gentleman. 

Having  contemplated  the  jewel — the  mind,  let  us 
turn  for  a  moment  to  the  casket — the  body,  that 
contained  it. 

Judge  Tilghman's  person  was  slightly  formed;  he 
was  about  five  feet  eight  inches  high,  with  mild  gray 
eyes,  fine  teeth,  handsome  features,  and  of  the  most 
gentle  and  amiable  expression  of  countenance.  The 
portrait  of  him  in  the  Law  Library  bears  a  perfect  re- 
semblance to  the  original.  It  is  a  copy  taken  by 
Neagle,  from  a  painting  by  Stewart,  in  the  possession 
of  the  late  Mrs.  Greenleaf,  the  sister-in-law  of  the 
Chief  Justice.  His  voice  was  very  sweet,  though  not 
strong,  and  his  deportment  upon  the  bench  was  marked 
by  that  attention  which  springs  only  from  a  conscien- 
tious desire  of  a  faithful  performance  of  duty.  Though 
he  was  nearly  seventy-one  years  old  at  the  time  of  his 
death,  his  hair  retained  its  original  color  of  dark  brown. 
It  was  thin,  and  carefully  combed  down  from  the 
centre  of  the  crown,  on  either  side,  with  the  most  pris- 
tine simplicity. 

VOL.  i.— 26 


394  THE  FORUM. 

He  was  too  mild  and  gentle  ever  to  have  made 
an  energetic  debater;  in  addition  to  which,  he  spoke 
somewhat  quickly,  and  with  occasional  hesitation. 
His  language  was  never  figurative,  and  its  chief 
strength  consisted  in  its  clearness  and  simplicity, 
which  was,  in  truth,  characteristic  of  his  mind.  He 
was  without  the  least  affectation,  vanity,  or  parade. 
He  performed  his  duty  because  it  was  his  duty,  not  to 
secure  the  approval  of  men;  and  he  did  it  with  unde- 
viating  punctuality  and  ability.  He  had  a  great  re- 
gard for  a  dignified  administration  of  justice ;  and  the 
only  time  that  we  ever  observed  him  to  be  disconcerted 
upon  the  bench  was  upon  one  occasion,  when,  the  busi- 
ness of  the  day  having  terminated,  his  associates  rose 
suddenly,  and  were  walking  off  without,  a  formal  ad- 
journment, when,  turning  to  them,  with  his  usual  mo- 
desty,* but  with  some  evidence  of  mortification,  he 
said,  "  Gentlemen,  shall  we  adjourn,  run  away,  or  re- 
sign ?" 

That  he  was  a  man  of  courage  no  man  can  doubt ; 
but  it  was  so  tempered  by  mildness  and  moderation, 
and  he  was  uniformly  treated  with  so  much  respect 

*  Of  all  the  judges  of  whom  juridical  history  has  furnished  any  ac- 
count, there  is  none  whom  Chief  Justice  Tilghman  so  strongly  resembled 
as  Sir  John  Eardly  Wilmot ;  whose  purity,  modesty,  and  utter  absence  of 
ambition,  were  certainly  never  surpassed,  and  scarcely  ever  equalled. — 
Vide  his  life,  written  by  his  son,  and  the  notice  of  it  in  Lord  Campbell's 
Chief  Justices. 


WILLIAM    TILGHMAN,    L.L.D.  395 

by  all  the  members  of  the  bar,  that  it  is  to  be  doubted 
whether  he  ever  had  occasion  to  rouse  himself  into 
any  display  of  energy,  firmness,  or  authority.  Yet, 
with  all  his  merits,  and  certainly  he  had  no  superior 
in  those  respects,  his  judicial  manner  was  not  equal  to 
Judge  Washington's,  though  superior  to  any  other  man 
that  ever  held  his  seat  upon  a  Pennsylvania  Bench. 
They  were  equally  learned  in  the  law,  or,  perhaps, 
Tilghman's  reading  was  the  more  comprehensive  of  the 
two.  They  were  equally  confided  in  by  the  public ; 
but  the  advantage  of  Washington  over  Tilghman,  con- 
sisted in  his  imperturbable  composure,  "  his  masterly 
inactivity,"  until  the  hour  of  action  arrived,  when  he 
struck  an  unerring  and  final  blow.  Whether  he  had 
less  timidity  than  his  great  rival,  it  is  difficult  to  say, 
but  he  showed  less,  perhaps,  than  any  man  that  ever 
held  a  similar  post. 

Judge  Tilghman's  appointment  to  the  Circuit  Court, 
which  has  been  mentioned,  was  the  last  act  of  the 
administration  of  John  Adams.  He  was  one  of  the 
midnight  judges,  as  they  were  called ;  but  it  may  be 
truly  said,  that  no  mid-day  judge  ever  surpassed  him, 
in  the  lustre  of  his  official  fame,  or  will  survive  him 
in  the  memory  of  all  by  whom  he  was  known. 


CHAPTER    VII. 

H.   H.  B  REG  KEN  RIDGE,   L.L.D. 

BORN,  1748— DIED,  1816. 

ONE  of  the  most  extraordinary  men  that,  perhaps, 
ever  held  a  seat  upon  the  judicial  bench  of  the  Supreme 
Court  of  the  State  of  Pennsylvania,  was  Hugh  Henry 
Breckenridge.  He  was  born  in  Scotland,  in  1748,  of 
humble  parents,  with  whom  he  came  to  this  country, 
at  the  age  of  five  years.  He,  almost  unassisted,  pursued 
his  course  of  early  life,  hi  "  shallows,  in  miseries,"  and 
in  poverty.  The  very  difficulties  thus  encountered, 
imparted  to  him  that  energy  of  character,  that  perse- 
vering industry,  which  finally  raised  him  to  high  judi- 
cial honors.  After  having  obtained,  as  he  best  might, 
a  very  scanty  education,  he,  at  the  age  of  sixteen, 
became  a  teacher  in  a  subordinate  academy  in  Mary- 
land. Here  he  remained  for  nearly  two  years.  During 
that  time,  though  his  salary  was  very  limited,  by 


H.    H.    BRECKENRIDGE,    L.L.D.  397 

means  of  the  most  rigid  economy,  he  succeeded  in 
laying  up  a  sufficient  sum  to  enable  him  to  enter 
Nassau  Hall,  (Princeton  College,)  of  which  Dr.  Wither- 
spoon  was  at  that  time  president.  He  was  in  the 
next  class  to  Luther  Martin,  James  Madison,  and 
William  Bradford.  He  graduated  in  the  year  1774, 
and  in  1777,  became  a  chaplain  in  the  army. 

In  1778,  he  commenced  the  study  of  the  law,  with 
Samuel  Chase,  afterwards  one  of  the  judges  of  the 
Supreme  Court  of  the  United  States;  and  in  1780 
was  admitted  to  practice  in  the  Supreme  Court  of 
Pennsylvania,  at  which  time  Thomas  M'Kean  was 
chief  justice,  and  Edward  Shippen  and  Jasper  Yeates 
associate  justices. 

In  1799,  Chief  Justice  M'Kean,  having  been  elected 
governor  of  Pennsylvania,  and  having  resigned  his 
judicial  position,  Judge  Shippen  became  chief  justice, 
and  Mr.  Breckenridge  was  appointed  in  his  place.  In 
1806,  Judge  Tilghman  succeeded  Judge  Shippen  as 
chief  justice,  and  Judges  Yeates  and  Breckenridge 
retained  their  places  as  associate  judges. 

After  his  appointment,  Breckenridge  lived  with  his 
accustomed  moderation,  and  by  dint  of  economy,  se- 
cured to  himself  a  moderate  competence,  leaving  at 
his  death,  which  happened  in  1816,  a  comfortable  sub- 
sistence for  his  family ;  and  at  the  time  owing  no  one 
anything,  and  nothing  being  due  to  him  but  a  quarter's 
salary. 


398  THE  FORUM. 

He  was  a  man  of  considerable  genius  and  humor, 
as  his  "  Modern  Chivalry,"  and  "  Law  Miscellany," 
abundantly  prove.  But  his  eccentricities  were  at 
times  so  great  as  almost  to  amount  to  insanity;  if 
one  half  the  traditions  in  regard  to  him  are  entitled  to 
our  reliance. 

There  never  appeared  to  be  much  cordiality  be- 
tween the  associate  judges ;  on  the  contrary,  it  might 
be  said  that  there  existed  a  want  of  harmony,  if  not 
a  decided  enmity  between  them.  Indeed,  two  men  of 
more  dissimilar  appearance  and  habits  could  scarcely 
be  imagined. 

It  is  related  of  Judge  Breckenridge,  that,  being  a 
nervous  man,  upon  one  occasion,  when  he  and  Judge 
Yeates  had  as  usual  taken  their  seats  at  the  opposite 
ends  of  the  bench,  before  the  arrival  of  the  chief  jus- 
tice, Judge  Yeates  was  employed  eating  an  apple,  and 
probably,  from  the  difficulty  in  masticating,  making 
more  noise  than  was  agreeable.  Judge  Breckenridge 
bore  it  for  a  long  time,  with  some  signs  of  impatience, 
until  at  length,  being  unable  to  endure  it  any  longer, 
he  turned  petulantly  to  his  learned  brother,  and  ex- 
claimed, "  I  think,  sir,  you  once  informed  me  that  you 
had  been  to  London,  visited  Westminster  Hall,  and 
saw  Lord  Mansfield  on  the  bench."  "  Yes,  sir,"  said 
Judge  Yeates,  "  I  had  that  honor."  "  Pray,  sir,"  was 
the  tart  reply,  "  did  you  ever  see  his  lordship  munch 
a  pippin  on  the  bench  ?"  This  ended  the  colloquy. 


H.    H.    BRECKENRIDGE,    L.L.D.  399 

Judge  Yeates  was  a  tall  and  portly  personage,  and 
about  seventy  years  of  age,  of  a  handsome,  florid,  and 
benignant  face,  with  full,  large,  blue  eyes;  dressing 
with  considerable  neatness,  with  hair  perfectly  white, 
and  in  short,  a  fine  representative  of  a  gentleman  of 
the  old  school. 

Judge  Breckenridge  was  about  the  same  height  and 
age,  perhaps  rather  younger;  somewhat  bent  in  the 
shoulders ;  dark,  sallow  complexion ;  small,  black, 
penetrating  eyes,  deeply  set  in  his  head;  face  much 
wrinkled;  sunken  mouth,  caused  probably  from  the 
loss  of  teeth ;  and  hair  of  "  sable  silvered."  His 
dress,  if  it  might  be  so  called,  was  the  most  careless 
that  could  be  conceived ;  and  his  address,  if  possible, 
worse  than  his  dress.  Wearing  a  rusty,  unbrushed 
black  coat,  and  vest,  and  with  very  little  difference  in 
color  between  them  and  his  shirt.  In  the  coldest 
weather  he  sat  with  his  breast  entirely  open ;  his 
small  clothes  without  suspenders,  and  neither  exactly 
on,  nor  off;  his  beard  unshaven,  and  his  hair  un- 
dressed; with  large,  ungainly  boots;  cravat  twisted 
like  a  rope,  and  his  whole  demeanour  apparently  any- 
thing but  attentive,  to  the  business  of  the  court. 

This  is  the  most  favorable  portrait  that  could  be 
drawn  of  his  exterior.  Indifference  to  appearance  had 
given  place  with  him  to  utter  contempt  of  it.  He  has 
been  known  to  sit  upon  a  trial,  at  a  case  at  Nisi  Prius, 
with  coat  and  jacket  both  off,  boots  drawn,  and  feet 


400  THE    FORUM. 

propped  up  against  the  desk ;  and  this,  too,  while  sur- 
rounded by  the  most  polished  and  distinguished  men 
that  ever  graced  a  judicial  tribunal.  Some  of  his 
excesses  were  such  as  to  forbid  description,  consistently 
with  regard  for  the  memory  of  an  otherwise  worthy 
and  estimable  person.  He  was  nevertheless  a  man  of 
undoubted  integrity,  and  by  no  means  deficient  in 
intellectual  power;  but  those  qualities  rendered  his 
aberrations  from  the  Uenseance  of  society  the  more 
remarkable  and  inexcusable.  So  much  for  the  appear- 
ance, habits,  and  manners  of  the  associates. 

Judge  Yeates  was  an  excellent  lawyer,  and  not 
unambitious  of  high  character,  in  judicial  as  well  as 
classical  literature.  Judge  Breckenridge,  though  a  ripe 
scholar,  and  by  no  means  deficient  in  legal  lore,  took 
but  little  pains  to  exhibit  his  knowledge  in  his  written 
opinions ;  and,  as  has  been  justly  said  of  him,  in  the 
most  of  his  discussions  even  of  the  gravest  subjects, 
intermingled  some  facetious  story,  or  a  quotation  from 
ancient  or  modern  poets,  either  in  the  way  of  merri- 
ment or  ridicule.  Judge  Yeates  was  a  great  lover  of 
society,  and  entered  deeply  into  the  enjoyments  and 
pleasures  of  convivial  or  fashionable  life.  Judge  Breck- 
enridge, on  the  contrary,  was  reserved  and  misanthro- 
pic. He  resolved  never  to  dine  out,  for  fear  his  host 
might  some  day  be  a  suitor  in  his  court.  He  seemed 
to  shun  social  or  convivial  scenes,  and  to  hold  commu- 
nion only  with  himself.  The  former  delighted  in  the 


H.    H.    BRECKENRIDGE,    L.L.D.  4Q1 

world  as  it  was  created  for  him — as  he  found  it ;  the 
latter  created  a  world  of  his  own,  and  each  seemed  to 
dwell  in  his  appropriate  and  opposite  sphere. 

It  could  scarcely  be  reasonably  supposed,  that  two 
such  men  should  ever  agree,  unless  to  disagree ;  and 
it  so  turned  out  that,  in  all  the  numerous  decisions 
pronounced  by  the  Supreme  Court,  while  Judge  Breck- 
enridge  was  upon  the  bench,  there  were  very  few  in 
which  he  agreed  in  opinion  with  Judge  Yeates,  and 
never  in  any  case  did  he  unite  with  him  against  the 
chief  justice.  The  reports  themselves  will  show  this, 
without  reference  to  particular  cases. 

This  diversity  may  have  been  attributable  to  a  radi- 
cal difference  between  the  two  men.  For  his  moderate 
means,  Breckenridge  may  be  said  to  have  been  a  liberal 
though  an  exact  man.  Judge  Yeates  was  a  man  of 
great  wealth,  but  of  a  fondness  for  accumulation,  which, 
whatever  may  have  been  the  generosity  of  his  feelings, 
prevented  its  exercise.  These  differences  may  have 
contributed,  with  other  causes,  to  the  estrangement  we 
have  mentioned ;  but,  however  it  may  be,  our  business 
is  not  to  explain  or  adjust  quarrels,  but  to  describe 
men.  One  thing  is  certain,  that  no  two  men  were 
more  irreconcilably  opposed,  in  almost  every  respect, 
than  the  subjects  of  this  notice. 

But  to  advert  more  particularly  to  Judge  Brecken- 
ridge, to  whom  this  sketch  is  mainly  directed. 

At  an  early  period  of  his  judicial  career,  the  Judges 


402  THE  FORUM. 

of  the  Supreme  Court,  be  it  known,  rode  the  circuit, 
severally  holding  the  Nisi  Prius  in  the  different  coun- 
ties. Upon  one  of  these  occasions,  when  Judge  Breck- 
enridge  was  about  starting  for  Chester,  a  lawyer,  who 
was  scarcely  less  eccentric  than  the  subject  of  this 
notice,  and  who,  himself,  afterwards  became  a  Judge 
of  the  Supreme  Court,  called  upon  Breckenridge,  and 
proposed  to  accompany  him  to  the  county  town. 

"  He  was,'!  said  the  lawyer,  in  relating  the  occur- 
rence, "  a  wonderful  man ;  he  never  permitted  me  to 
be  alongside  of  him  during  a  journey  of  more  than 
twenty  miles.  For  a  while  he  rode  ahead  of  me,  and 
when  I  came  up  to  him,  he  would  fall  in  the  rear ;  and 
when  I  slackened  my  pace,  so  that  he  might  come  up, 
he  would  again  start  ahead;  at  length,  however,  in 
this  irregular  and  unsociable  way,  we  reached  the 
place  of  our  destination.  We  there  parted,  and  put 
up  at  different  houses. 

"  In  the  evening  of  our  arrival,  I  called,  as  a  mat- 
ter of  courtesy,  at  his  lodgings,  when,  after  some  ques- 
tions, he  inquired  as  to  the  state  of  the  issue  list.  I 
informed  him,  and  told  him  I  had  the  first  case  upon 
the  list;  he  asked  what  it  was  about?  this,  also,  I  told 
him;  and  he  then  requested  to  know  what  was  the 
evidence  and  the  legal  principles  upon  which  I  relied  ? 
Here  I  hesitated,  saying,  that  I  did  not  wish  to  contri- 
bute to  a  pre-judgment  of  the  cause.  '  Never  fear/ 
said  he,  '  I  shall  not  be  biased.'  Whereupon,  I  pre- 


H.    H.    BRECKENRIDGE,    L.L.D.  493 

sented  the  whole  matter  to  him.  He  said  nothing,  and 
shortly  after  I  took  my  leave. 

"  Next  morning,  as  expected,  the  case  was  called ;  I 
opened  it  fully,  and  I  thought,  triumphantly  presented 
the  facts,  and  submitted  my  law.  The  opposite  coun- 
sel rose  to  reply,  when,  to  my  infinite  mortification 
and  astonishment,  the  Judge  told  my  adversary  he 
need  not  say  any  thing ;  that  the  plaintiff  had  no  case, 
and  he  should  direct  a  non  pros,  which  he  accordingly 
did,  forthwith." 

I  have  nothing  to  say,  as  to  the  dignity  of  this  pro- 
ceeding, but  I  feel  compelled  to  observe,  that  if  ever 
a  lawyer  deserved  a  non  pros,  it  was  the  counsel  in 
this  case,  who  was  so  much  mortified  and  ashamed  at 
getting  it. 

This,  to  those  who  knew  Judge  Breckenridge,  will 
be  deemed  a  highly  characteristic  anecdote.  But  we 
regret  to  turn  to  another  of  a  less  favorable  stamp,  in 
which  the  wit  is  surpassed  by  the  impropriety. 

In  a  famous  Ejectment,  tried  in  the  Nisi  Prius,  be- 
fore Judge  Thomas  Smith,  in  one  of  the  interior  courts 
of  the  State,  Judge  Breckenridge,  at  that  time  at  the 
bar,  was  concerned  for  the  plaintiff,  whose  claims  to  a 
verdict,  were  considered  somewhat  doubtful.  The 
client,  upon  being  inquired  of,  said  his  witnesses 
were  all  ready,  and  prepared,  in  common  phrase,  "  to 
toe  the  mark ;"  "  but,"  added  he,  "  I  am  afraid  of  the 
judge — don't  you  think  a  couple  of  joes  would,  if  paid 


404  THE  FORUM. 

to  him,  be  serviceable  to  us  ?"  "  Pooh,"  said  the  coun- 
sel, "the  judge  would  not  listen  to  such  a  hint,  or 
would  probably  charge  against  you,  or  commit  you ; — 
perhaps  twenty  joes  might  answer  your  purpose,  but 
they  had  better  pass  through  my  hands."  "Well," 
said  the  plaintiff,  "  it's  a  valuable  farm,  and  I  have  no 
objection ;"  and  accordingly  handed  over  the  money. 
Upon  this  being  done,  Breckenridge  approached  Judge 
Smith  and  spoke  to  him  for  a  while,  and  then  resumed 
his  seat.  The  Judge  commenced  his  charge  to  the 
jury,  described  the  points  in  issue  with  great  clear- 
ness— presented  the  plaintiff's  claim  and  his  evidence ; 
then  took  up  the  defence,  and  after  brushing  away 
subordinate  matter,  (during  all  which  time  the  plaintiff 
showed  the  greatest  anxiety,)  at  last  came  to  the  turn- 
ing point,  which  he  determined  for  the  plaintiff,  who, 
unwilling  to  contain  himself  any  longer,  exclaimed, 
"Ah!  now  the  joes  begin  to  work."  Breckenridge, 
some  years  after,  while  upon  the  bench,  related  this 
story  upon  a  festive  occasion,  in  the  presence  of  Judge 
Smith,  who  rebuked  him  sharply,  for  having  thus  slan- 
dered him  and  degraded  the  character  of  justice ;  and, 
it  is  said,  never  afterwards  admitted  Breckenridge  into 
his  confidence. 

There  are  other  odd  reminiscences  related  of  him, 
which  may  throw  additional  light  upon  his  idiosyncra- 
cies.  During  the  tune,  as  has  been  said,  the  circuits 
existed,  a  friend  of  the  Judge,  riding  in  his  carriage 


H.    H.    BRECKENRIDGE,    L.L.D.  4Q5 

in  the  western  part  of  the  State,  while  a  prodigious 
storm  of  wind  and  rain  prevailed,  saw  a  figure  ap- 
proaching, which  resembled,  what  might  be  conceived 
of  Don  Quixote,  in  one  of  his  wildest  moods :  a  man, 
with  nothing  on  but  his  hat  and  boots,  mounted  upon 
a  tall,  raw-boned  Rosenant,  and  riding  deliberately 
through  the  tempest.  On  nearer  approach  he  disco- 
vered it  to  be  Judge  Breckenridge,  and  upon  inquiring 
what  was  the  cause  of  the  strange  phenomenon,  Breck- 
enridge informed  him,  that  seeing  the  storm  coming  on, 
he  had  stripped  himself  and  put  the  clothes  under  the 
saddle ;  "  because,"  said  he,  "  though  I  am  a  judge,  I 
have  but  one  suit,  and  the  storm,  you  know,  would 
spoil  the  clothes ;  but  it  could'nt  spoil  me" 

In  order  to  understand  the  full  application  of  this 
last  notion,  strange  as  it  may  seem,  after  what  has 
been  said  of  the  Judge's  personal  habits,  it  should  be 
mentioned,  that  he  was  a  great  devotee  to  shower- 
baths,  which  he  regularly  continued  the  year  through, 
and  upon  some  occasions,  when  the  luxury  of  a  regular 
bath  could  not  be  obtained,  he  would  place  himself 
behind  the  grating  of  a  basement  window,  or  some 
similar  contrivance,  and  employ  some  sturdy  servant 
from  the  outside,  to  dash  a  bucket  of  water  upon  him 
through  the  grating,  while  in  that  position. 

Notwithstanding  these  whims  and  caprices,  he  was 
by  no  means  deficient  in  firmness  and  fortitude.  His 
laborious  youth,  his  self-sacrificing  and  persevering  in- 


406  THE  FORUM. 

dustry,  in  a  word,  give  abundant  evidence  of  the  in- 
domitable will.  But  though  possessed  of  courage,  his 
disposition  was  to  avoid  quarrels  of  all  kinds ;  he  ab- 
horred duelling,  and  always  preferred  wit  to  bravery. 
Having,  during  the  Revolutionary  war,  severely  lam- 
pooned General  Lee,  (at  that  time  one  of  the  ruling, 
though  discontented  spirits,  of  the  American  army,)  he 
was  hotly  pursued  by  the  irritated  officer,  for  the  pur- 
pose of  personal  chastisement.  The  Judge,  however, 
succeeded  in  reaching  his  house,  and  entering  and  lock- 
ing the  door,  he  rushed  up  stairs  and  looked  out  of  the 
window  upon  his  enraged  pursuer.  "  Come  down,  sir," 
said  the  General,  "  and  I'll  give  you  a  cowskinning." 
"  I  won't,"  was  the  ready  reply,  "  if  you'll  give  me 
TWO." 

His  contempt  for  duelling  has  been  mentioned. 
It  is  reported,  that  while  a  young  man,  he  was  chal- 
lenged by  an  English  officer  to  fight  a  duel — we  do 
not  answer  for  the  truth  of  this,  but  there  is  an  inci- 
dent related  in  his  "Modern  Chivalry,"  not  at  all 
unlike  it,  and  though  referring  to  another,  may  have 
been  the  origin  of  its  being  ascribed  to  the  author  of 
that  work.  The  following  answer  to  the  alleged  chal- 
lenge, is  no  doubt,  the  production  of  Breckenridge,  and 
is  in  entire  conformity  to  his  views,  as  always  enter- 
tained and  expressed  : — 

"I  have  two  objections  to  this  duel  matter — the  one  is,  lest  I 


H.    H.    BRECKENRIDGE,    L.L.D.  4Q7 

should  hurt  you ;  the  other  is,  lest  you  should  hurt  me.  I  don't  see 
any  good  it  would  be  to  me,  to  put  a  ball  through  your  body;  I 
could  make  no  use  of  you  when  dead,  for  any  culinary  purpose,  as 
I  would  a  rabbit  or  turkey.  I  am  no  cannibal,  to  feed  upon  the 
flesh  of  men.  Why,  then,  shoot  down  a  human  creature,  of  whom 
I  could  make  no  use  ?  A  buffalo  would  make  better  meat ;  for, 
though  your  flesh  might  be  delicate  and  tender,  yet  it  wants  the 
firmness  and  consistency  which  take  and  retain  salt.  At  any  rate, 
it  would  not  do  for  a  long  sea  voyage.  You  might  make  a  good 
barbacue,  it  is  true,  being  of  the  nature  of  a  raccoon  or  oppossum ; 
people  are  not  in  the  habit  of  barbacuing  anything  that  is  human 
now.  And,  as  to  your  hide,  it  is  not  worth  taking  off",  being  little 
better  than  a  two-year-old  colt  1  So  much  for  you. 

"  As  to  myself,  I  do  not  like  to  stand  in  the  way  of  anything  that 
is  hurtful.  I  am  under  the  impression  that  you  might  hit  me.  This 
being  the  case,  I  think  it  most  advisable  to  stay  in  the  distance.  If 
you  mean  to  try  your  pistol,  take  some  object,  a  tree,  or  a  barn  door 
about  my  dimensions ;  if  you  hit  that,  send  me  word,  and  I  will 
acknowledge  that  if  I  had  been  in  the  same  place,  you  might  also 
have  hit  me." 

This  is  not  quite  equal,  for  its  reasoning,  with  a  case 
which  we  remember  of  a  member  of  the  bar,  who  was 
very  irritable,  sending  an  invitation  to  fight,  to  a 
much  younger  man,  who  at  once  declined  the  honor, 
in  these  words  : — 

"  It  is  against  my  conscience  to  fight  a  duel,  unless  the  damnation 
were  as  great  to  refuse,  as"  to  accept,  a  challenge.  But  my  reason, 
as  well  as  my  conscience,  is  against  it.  I  am  a  young  man,  full  of 
life,  and  with  everything  around  me  to  make  life  agreeable — sue- 


408  THE  FORUM. 

cessful  now,  and  full  of  hope  for  the  future.  You,  on  the  contrary, 
are  an  old  man,  your  hopes  and  your  life  both  declining ;  in  addition 
to  which,  your  temper  is  so  unhappy,  that  I  suppose  you  at  times 
would  thank  any  one  to  blow  your  brains  out ;  whereas,  I  am  so 
happy  that  I  desire  to  live,  and  have  much  to  live  for.  I  ask  you, 
then,  whether  we  occupy  an  equal  footing  ?  In  any  event,  I  should 
lose  everything — and  you,  nothing" 

In  1805,  Chief  Justices  Shippen,  Yeates  and  Smith 
were  brought  before  the  Senate,  charged  with  oppres- 
sion, in  regard  to  an  individual  who  was  committed, 
(as  in  the  case  of  Oswald,.)  for  a  libel  touching  a  suit 
pending  in  court.  The  judges  were  all  acquitted.  In 
this  case  Judge  Breckenridge  manifested  great  magna- 
nimity. He  was  not  embraced  by  the  impeachment, 
but  as  he  approved  of  the  conduct  of  the  court,  he  re- 
quested to  be  permitted  to  share  in  the  fate  of  his 
brethren.  The  House  took  him  at  his  word,  and  sent 
up  an  address  for  his  removal ;  and  here  it  was  that 
the  Governor,  as  heretofore  described,  when  waited 
upon  by  a  committee,  who  urged  upon  him  that  the 
terms,  "  may  remove,"  in  the  Constitution,  meant 
"  must  remove,"  promptly  replied,  that  he  would  have 
them  to  know,  that  " may"  sometimes  meant  " wont" 
We  scarcely  know  which  to  admire  most,  the  chivalry 
of  Breckenridge,  or  the  firmness  and  independence  of 
M'Kean;  and  we  have  therefore  thus  noticed  this 
anecdote,  in  the  sketches  of  both  of  them,  as  equally 
honorable  to  both. 


H.    H.    BRECKENRIDGE,    L.L.D.  4QQ 

To  look  at  Judge  Breckenridge,  you  would  have  sup- 
posed him  to  be  an  ascetic.  Not  at  all ;  on  the  con- 
trary, he  was  always  mentally  engaged  either  in  some 
amusing  fancy,  or. in  reflecting  upon  the  fantastical 
fashions,  or  ridiculous  pretensions  or  extravagances  of 
the  day. 

He  always  stood  up  stoutly  for  the  legal,  local  and 
literary  superiority  of  Pennsylvania.  He  used  to  relate 
with  great  gratification  his  triumph  over  a  gentleman  of 
Virginia,  who  objected  to  an  expression  of  the  Act  of 
Assembly  of  Pennsylvania,  "  that  the  State-house  yard 
should  be  surrounded  by  a  brick  wall,  and  remain  an 
open  enclosure  for  ever."  But,  said  Judge  Brecken- 
ridge,  I  soon  put  him  down,  by  referring  to  that  act  of 
the  Legislature  of  Virginia,  which  is  entitled  "  A  sup- 
plement to  an  act  to  amend  an  act,  making  it  penal  to 
alter  the  mark  of  an  unmarked  HOG." 

He  facetiously  maintained,  that  the  only  unqualified 
SLAVE  IN  PENNSYLVANIA,  WAS  a  CANDIDATE  FOR  OFFICE  THE 
DAY  BEFORE  THE  ELECTION.  From  these  instances,  toge- 
ther with  some  extracts,  to  be  furnished  hereafter,  from 
his  miscellany,  it  may  be  easily  perceived  that  he  was  an 
acute,  though  an  amusing,  rather  than  a  grave  thinker. 

Judge  Breckenridge  wrote  some  ephemeral  poems, 
which  we  merely  mention,  but  cannot  pause  upon,  as 
they  are  not  properly  within  the  limits  of  this  work. 
They  are  creditable  to  his  genius,  but  will  not  outlast 
his  memory.  "  Modern  Chivalry,"  another  production 

VOL.  i. — 27 


410  THE    FORUM. 

of  his  pen,  which  has  passed  through  several  editions, 
is  replete  with  wit  and  satire.  It  is  said,  we  know  not 
with  what  truth,  to  have  originated  in  revengeful  feel- 
ings, produced  by  the  author's  having  been  refused 
membership  in  the  Philosophical  Society  of  Pennsyl- 
vania.* There  are  some  passages  in  the  work  that 
might  probably  be  pressed  into  the  support  of  this 
notion,  but  the  more  obvious  tendencies  of  the  work 
seem  to  be  directed  against  duelling  and  absurd  mili- 
tary display. 

The  vein  of  the  judge  was  almost  always  humorous 
and  ironical;  and  perhaps  this  production,  and  much 
that  is  contained  in  his  "  Law  Miscellany,"  published 
in  1$14,  some  two  years  before  his  death,  will  present 
about  as  accurate  a  view  of  his  general  mode  of  thought 
as  can  at  this  time  possibly  be  obtained.  We  say  at 
this  time ;  for,  in  an  undertaking  of  this  kind,  we  re- 
peat, it  is  not  to  be  disguised,  while  it  is  much  to  be 
regretted,  that  in  our  country  we  are  assisted  by  but 
few  memorials  of  the  departed — in  the  career  of  the 
living,  the  dead  are  too  often  forgotten.  In  contempt 
of  all  hereditary  pride  or  ancestral  glory,  there  is 
scarcely  a  boy  among  us  that  is  disposed  to  acknow- 
ledge that  he  ever  had  a  great  grandfather ;  and  this 
country,  it  is  therefore  feared,  will  never  furnish  ma- 
terial for  the  Historical  Society ;  at  all  events,  never 
until  she  shall  arrive  at  the  years  of  discretion.  We 

*  Dubitatur. 


H.    H.    BRECKENRIDGE,    L.L.D. 

have,  in  the  language  of  Bacon,  "  no  knowledge  of  an- 
tiquity, and  no  antiquity  of  knowledge." 

In  concluding  this  outline  of  Judge  Breckenridge, 
we  cannot,  perhaps,  do  better  than  present  to  our  pro- 
fessional reader  some  of  his  views,  as  expressed  in  his 
Miscellanies,  in  regard  to  the  "Res  Angustso  Domi" 
men, — the  best  modes  of  advancement  in  business, — 
and  the  no  less  important  subject  of  avoiding  bad 
habits  among  the  youthful  members  of  the  bar,  in  order 
to  the  attainment  of  future  eminence.  These  extracts 
not  only  contain  excellent  advice,  but  afford  an  insight 
into  the  peculiarities  of  the  mind  of  their  author: — 


THE   "RES   ANGUST^E   DOMI"   MEN.* 

"  Boys  are  men  too  soon,  and,  therefore,  always  boys.  We  see 
the  skilful  husbandman  repressing  the  luxuriance  of  his  grass,  by 
cutting ;  or  lopping  his  tree,  to  give  it  base,  and  make  it  spread. 
The  American  genius  is  vigorous  abundantly ;  but  there  is  an  im- 
patience to  appear,  in  the  capacity  of  men,  and  to  undertake  a  pro- 

*  Judge  Breckenridge  must  have  borrowed  the  thought  from  the  fol- 
lowing circumstance : — When  he  was  at  Princeton  College,  he  complained 
to  Dr.  Witherspoon,  the  president,  of  the  difficulties  he  encountered,  and 
observed  that  he  felt  the  full  force  of  the  "Res  Angustte  Domi"  doctrine. 
"Aye,  but  remember,  my  young  friend,"  said  the  Doctor,  "it  is  the  'Res 
Angustce  Domi'  men  that  always  succeed !" 


412  THE    FORUM. 

fession ;  which  cannot  but  be  in  the  way  of  attaining  a  great  emi- 
nence. A  lofty  structure  requires  a  deep  and  broad  foundation. 
'  Nor  would  Italy/  says  the  poet,  '  be  raised  higher  by  valor  and 
feats  of  arms,  than  by  its  language,  did  not  the  fatigue  and  tedious- 
ness  of  using  the  file  disgust  every  one.' 

" '  Nee  virtute  foret  clarisve  potentius  armis, 
Quam  lingua  Latium  ;  si  non  offenderet  unum 
Quemque  poetarum  lima?  labor  et  mora.' — Horace. 

"  The  not  having  the  means  of  support  in  going  through  a  regular 
course  of  education,  and  waiting  a  reasonable  time  for  an  admittance 
to  the  bar,  is  a  reason  with  many  for  this  haste ;  but  impatience  is 
the  cause  with  more.    With,  those  that  want  means,  there  is,  usually, 
industry  and  perseverance,  to  make  up  for  this ;  but  it  requires  in- 
dustry and  perseverance.     A  medium  between  easy  and  narrow  cir- 
cumstances is  desirable,  but  not  the  possession  or  prospect  of  an 
estate,  independent  of  the  practice.     For  when  there  is  such  a  pros- 
pect, or  possession,  the  necessary  exertions  cannot  be  excited  that 
will  make  a  lawyer.     It  may  be  said  to  be  as  easy,  in  the  language 
of  the  scripture,  with  a  view  to  another  object,  for  a  camel,  or  cable, 
as  some  suppose  it  ought  to  be  translated,  to  go  through  the  eye  of 
a  needle,  as  for  the  son  of  a  rich  man  to  become  a  lawyer ;  or,  in 
fact,  almost  anything  else  that  requires  labor.     Such  must  remain 
amongst  those,  the  fruges  consumere  nati.     The  Novi  homines,  the 
res  angustse  domi  men  can  alone  surmount  the  drudgery  of  acquiring 
a  knowledge  of  the  law ;  or  sustain  the  practice.    Were  I  to  depict 
the  making  a  man  a  lawyer,  I  would  change  a  little  the  image  of 
that  moral  painting  in  the  tablature  of  Cebes,  where  the  virtuous 
man  is  represented  as  climbing  a  rock,  two  female  figures  (sisters) 
self-government  and  perseverance^  standing  above,  and  extending 
their  hands  to  encourage  him.     I  would  represent  one  clambering 


H.    H.    BRECKENRIDGE,    L.L.D. 

up  a  precipice,  and  poverty,  like  an  old  and  ugly  witch,  with  a  flail, 
urging  from  below. 

" '  Duris  in  rebus  iirgens  egestas.'  " 


MODE    OF    ADVANCEMENT    IN    LEGAL    PRACTICE. 

"  To  give  a  hint  that  is  worth  a  Jew's  eye,  as  the  phrase  is,  to  the 
young  practitioner  of  law — let  him  endeavor  to  recommend  himself 
to  the  older  and  abler  of  the  profession,  by  showing  that  he  can  be 
serviceable  in  a  cause  into  which  he  may  have  had  the  good  fortune 
to  be  introduced.  It  cannot  be  expected  of  him  to  do  much  in  the 
higher  department  of  conducting  a  suit,  or  arguing  the  cause  upon 
a  point  of  law;  and  perhaps  not  much  in  convincing  a  jury  as  to  the 
conclusion  of  fact  which  his  client's  interest  requires  to  be  drawn. 
For  it  requires  an  intimate  knowledge  of  the  human  heart,  from 
reflecting  upon  the  operations  of  our  own  passions,  or  from  our  expe- 
rience and  observation  of  those  of  others,  to  enable  to  persuade  the 
mind ;  and  to  this,  in  the  nature  of  the  case,  the  young  cur  of  the 
profession  cannot  but  be  greatly  incompetent.  But  it  may  be  ex- 
pected, and  ought  to  be  expected  of  him,  that  he  will  do,  what  he  can 
do ;  and  to  which,  until  he  acquires  experience,  he  may  be  competent. 
And  this  is  the  taking  care  of  the  docket ;  watching  the  entries  of 
rules ;  searching  the  docket ;  copying  a  declaration,  or  statement,  or 
a  notice,  or  a  paper-book  for  a  court  of  error,  &c.  Giving  audience  to  a 
client,  and  keeping  him  off  from  the  leading  counsel,  who  is  otherwise 
engaged  in  his  behalf,  and  to  better  purpose  than  listening  to  him, 
though  the  client  may  not  be  able  to  comprehend  this.  Nevertheless, 
it  is  what  the  younger  practitioner  can  do ;  for  as  to  the  client,  he 
measures  your  attention  to  his  cause,  and  the  interest  you  take  in  it, 


414  THE    FORUM. 

by  the  hearing  you  give  him.  The  younger  in  the  practice  may  take 
all  or  some  of  these  matters  on  himself;  for  it  is  the  maxim,  and 
ought  to  be,  "  Juniores  ad  labores" — matters  of  mere  labor  let  the 
junior  take. 

In  the  course  of  all  this  business,  the  younger  counsel  will  find 
himself  well  rewarded  by  the  information  he  will  acquire  of  the 
practice,  from  the  corrections  and  directions  of  the  older  in  the  pro- 
fession. But  it  is  oftentimes  the  case,  that  the  younger  will  be  for 
doing  what  they  are  not  capable  of  doing ;  and  from  a  false  sense  of 
honor  and  obstinacy  of  silly  pride,  they  will  not  do  what  it  may  be 
in  their  power  to  do.  The  consequence  is,  the  elder  counsel  will  not 
find  his  account  in  being  coupled  with  them,  and,  therefore,  will 
neither  take  the  pains  to  instruct,  nor  exert  himself  to  get  them 
employed  and  brought  forward  in  a  cause. 

"  The  false  pride  of  the  younger  counsel  may  take  the  alarm  at 
being  thought  to  act  a  subordinate  part  in  all  these  inferior  matters, 
and  especially  the  being  thrown  as  a  tub  to  the  whale,  to  keep  the 
client  off;  but  he  will  find  his  account  in  it,  for,  by  his  hearing 
patiently,  and  seeming  to  understand,  he  will  gain  the  good-will  and 
confidence  of  the  client,  who  will  very  probably  attribute  to  him  his 
success  in  the  cause,  if  he  should  happen  to  succeed.  In  the  petit 
guerre  of  the  trial,  there  will  be  occasions  when  a  judicious  leading 
counsel  may  safely  suffer  him  to  speak.  For  the  discharge  of  artil- 
lery, even  where  there  is  but  flash  and  smoke,  may  do  something  by 
the  sound ;  it  may  check  the  progress  of  an  enemy,  until  the  column 
is  formed  in  another  quarter.  At  the  same  time,  by  managing  the 
piece,  the  young  artillerist  will  acquire  a  facility,  though  he  has  but 
powder;  and  may  be  the  better  able  to  direct  it  when  he  comes  to 
have  ball. 

"  It  is  the  county  and  circuit  courts,  chiefly,  that  I  have  in  my 
eye  in  giving  these  prescriptions,  where,  in  the  country,  a  great  deal 
of  business  presses  all  at  once  upon  the  counsel,  and  it  is  of  moment 


H.    H.    BRECKENEJDGE,    L.L.D. 

to  have  some  person  in  the  cause  that  will  do  the  hearing  business, 
without  which  a  client  will  not  be  satisfied.  He  will  sit  by  you  even 
in  court,  and  injure  himself  by  disturbing  you.  I  once  was  put  out  of 
humor  by  one  who  interrupted  me  in  this  manner  at  an  important 
point — an  exception  to  evidence.  He  jogged  me,  and  I  gave  him  a 
pretty  smart  jog  in  return.  He  was  what  is  called  a  back -woods 
man,  and  a  hunter.  '  I  had  him  (the  opponent)  in  my  eye,'  said  I, 
1  his  defeat  in  my  eye ;  my  rifle  raised ;  and  now,  by  that  jog  on  the 
elbow,  I  have  lost  my  shot.'  ***** 

"  Again,  on  being  applied  to,  for  the  purpose  of  advice  as  to  the 
bringing  a  suit  for  a  client,  you  will  doubtless  advise  according  to  the 
best  of  your  judgment.  But  take  it  to  be  the  case  that  you  have  been 
consulted,  and  the  evidence  fairly  disclosed  to  you,  and  you  have 
approved  the  bringing  suit,  the  plaintiff,  in  your  opinion,  having  the 
law  clearly  in  his  favor.  But,  upon  trial,  though  he  proves  all  that 
he  had  undertaken  to  prove,  and  the  defendant  nothing  to  overthrow 
it,  so  as  to  change  the  law,  which  you  had  pronounced  to  be  in  his 
favor,  yet  the  decision  of  the  court  has  been  against  you,  what  are 
you  then  to  do.  I  will  not  say  what  you  are  to  do,  but  I  will  state 
to  you  the  address  of  a  young  practitioner  whom  I  once  knew,  not 
overburthened  with  legal  knowledge,  at  least  not  the  greatest  lawyer 
in  Christendom,  who  happened  to  be  in  the  predicament  of  which  I 
speak,  and  being  upbraided  by  his  client  with  the  usual  language, 
'  did  you  not  tell  me,  I  had  the  law  on  my  side  ?'  '  And  did  I  not 
tell  the  court  so,  too,'  says  the  advocate.  '  Did  you  ?'  says  the  client. 
'  Ay,  did  I ;  to  their  faces ;  I  told  them  you  had  the  law  on  your 
side.'  The  governor  can  give  commissions,  but  nature  only  can  give 
sense.  What  could  a  client  have  more  to  say  ?" 


THE    FORUM. 


AVOIDING  BAD   HABITS   AMONG   THE   YOUNG 
MEMBERS   OF   THE   BAR. 

"  Lastly,  I  come  now  to  say  a  little,  on,  perhaps,  a  more  important 
point;  that  of  self-preservation  from  bad  habits.  These  are  fre- 
quently acquired  from  mere  imitation,  or  the  idea  of  being  a  fashion- 
able fellow ;  such  as  smoking  segars,  which  is  detestable  in  a  young 
person,  and  never  fails  to  exhibit  to  me  the  evidence  of  a  bad  family 
education,  or  indulgence.  Or,  if  not  proceeding  from  that  source, 
the  effect  of  puppyism,  which  bespeaks  a  mind  naturally  little,  and 
of  the  petit  maitre  kind.  Imitators  are  contemptible  everywhere ; 
such  as  at  London,  or  Paris,  your  opera-glass  coxcombs.  The 
wearing  spectacles,  some  years  ago,  was  common  in  Philadelphia, 
among  the  young  men,  because  there  happened  to  be  a  few  great 
men  there,  in  the  profession  of  the  law,  that  wore  spectacles  :  Wil- 
son, Lewis,  Coxe,  and  Wilcox.  They  wore  them  because  they 
needed  them ;  on  account  of  the  convexity  of  the  visual  orb.  But 
the  use  of  glasses  by  their  imitators,  when  they  walked  the  streets, 
was  from  an  affectation  of  being  thought  learned  men,  because  they 
resembled  such  in  a  nearness  of  vision,  and  the  necessity  of  using 
lenses  on  the  nose.  It  was  more  pardonable  in  a  blind  man  whom 
I  once  knew,  who  wore  spectacles  to  make  people  believe  that  he 
could  see. 

"  But  the  segar  excites  thirst  and  leads  to  intemperance.  When 
the  mouth  is  parched,  you  must  wet  the  whistle ;  recourse  must  be 
had  to  something  to  moisten  it  That  which  was  at  first  unneces- 
sary, and  mere  wantonness  of  indulgence,  becomes  a  habit,  and 
cannot  be  got  rid  of,  but  increases  until  the  individual  becomes  the 
slave  of  tobacco,  and  of  spirituous  liquor.  I  never  see  a  young  per- 
son with  a  segar  in  his  teeth,  but  I  give  him  up,  as  one  that  will 
never  come  to  much.  In  early  life  there  can  be  no  necessity  for 


H.    H.    BRECKENRIDGE,    L.L.D. 

narcotics,  or  use  in  them,  as  a  sedative ;  nor  is  there  any  necessity 
for  the  use  of  stimulants,  when  the  animal  spirits  are  of  themselves 
gay,  and  sufficiently  volatile.  These  things  ought  all  to  be  reserved 
for  a  more  advanced  age,  if  used  at  all,  and  the  beginning  too  soon 
with  the  use  of  them  is  unnatural  and  destructive. 

"  The  situation  of  the  greatest  danger  to  a  young  practitioner  of 
law  is  a  remote  county  town,  where  amusements  are  few,  and  a  lite- 
rary society  is  wanting.  The  attending  the  courts  is,  to  all,  a  scene 
of  inducement  to  intemperance,  it  being  the  lawyer's  harvest ;  and 
as  on  that  occasion,  as  with  agricultural  men,  so  on  this  with  the 
lawyer,  there  is  a  latitude  of  mirth  and  convivial  indulgence,  to 
which  those  are  the  most  exposed  whose  society,  from  wit  or  song,  or 
other  talent,  is  the  most  courted.  There  can  be  no  profession  where 
it  behooves  to  be  so  much  upon  guard,  in  these  respects,  as  the 
practitioner  of  the  law.  Intemperance  of  living  at  the  county  courts, 
and  sitting  up,  perhaps  at  cards,  l  hath  cast  down  many  wounded  ; 
many  strong  men  have  been  slain  by  it.'  It  is  owing  to  these 
causes  and  circumstances,  in  a  great  degree,  that  so  few  succeed  in 
the  profession  of  the  law,  which,  I  will  admit,  will,  in  a  republic, 
where  the  law  governs,  always  have  the  first  place  as  an  order  or 
rank  of  men." 


CHAPTER  VIII. 

JOHN    BANNISTER    GIBSON,  L.L.D. 

BOSN,  NO V.,  1780— APPOINTED,  JUNE,  1816— DIED,  MAY,  1853. 

JOHN  BANNISTER  GIBSON  was  born  on  the  eighth  day 
of  November,  in  the  year  1780 ;  and  on  the  morning 
of  the  third  of  May,  1853,  as  the  State  House  clock, 
which,  for  more  than  thirty-five  years,  had  summoned 
him  to  his  judicial  labors,  struck  two,  he  breathed  his 
last,  in  the  seventy-third  year  of  his  age,  full  of  years 
and  full  of  honors ;  and  what  is  better,  full  of  faith  in 
his  Redeemer.  He  died  in  the  embraces  of  an  affec- 
tionate and  beloved  family,  to  whom  he  bequeathed, 
if  no  other  fortune,  the  rich  legacy  of  an  enduring 
Fame.  He  was  the  son  of  Colonel  George  Gibson,  a 
gallant  soldier  of  the  Revolution,  who  was  killed  at  St. 
Glair's  defeat  by  the  Indians  in  1799*.  / 

In  a  letter  written  by  Judge  Gibson,  a  short  time 


JOHN    BANNISTER    GIBSON,    L.L.D. 

before  his  death,  in  answer  to  an  inquiry  in  regard  to 
his  maternal  ancestry,  he  furnished  all  the  details  upon 
that  subject  which  are  necessary;  and  we  therefore 
adopt  them  as  more  reliable  than  those  which  might  be 
derived  from  any  other  source. 

"  My  mother,"  says  he,  "  was  Ann,  the  daughter  of  Francis  West, 
descended  from  an  Irish  branch  of  the  Delaware  family,  possibly 
before  it  was  ennobled.  The  peerage  is  English,  and,  I  believe,  an 
existing  one.  The  family  name  is  West.  Her  mother  was  a  Wynne. 
Owen,  the  head  of  the  family,  is,  or  was,  the  first  commoner  in  Ire- 
land. Through  the  Wynnes,  we  are  connected  with  the  Coles,  Earls 
of  Enniskillen.  Another  connexion,  not  perhaps  so  respectable,  was 
the  famous  Colonel  Barre,  the  intimate  associate  of  Wilkes.  My 
mother  was  born  at  Clover  Hill,  near  Sligo,  in  1746,  and  came  to 
this  country  in  1754  or  1755.  She  died  in  February,  1809.  I 
believe  her  father  had  been  a  Trinity  College  boy,  for  he  spoke  Latin, 
after  the  fashion  of  the  day.  My  mother,  who  was  certainly  a  well 
educated  woman,  directed  my  course  of  reading,  and  put  such  books 
into  my  hands  as  were  proper  for  me.  My  father's  collection  of  from 
one  to  two  hundred  volumes  (among  them  Burke's  Annual  Eegister,) 
I  read  so  often,  that  I  could  almost  repeat  pages  of  them  yet.  My 
poor  mother  struggled  with  poverty  during  the  nineteen  years  she 
lived  after  my  father's  death  j  and,  having  borne  up  till  she  saw 
me  admitted  to  the  bar,  died.  She  certainly  was  a  clever  woman, 
but  the  little  talent  of  the  family  came  from  my  father's  side.  I 
should  say  genius,  for  he  had  no  business  talents  whatever.  He  was 
celebrated  as  a  humorist,  and  was  a  wit.  Though  without  any  single 
positive  vice,  he  never  could  advance  his  fortune,  except  in  the  army, 
for  which  he  was  peculiarly  fitted." 


420  THE  FORUM. 

Having  shed  as  much  ancestral,  direct  and  collateral 
light  upon  our  subject  as  the  occasion  requires,  we 
return  now  to  the  topic  with  which  we  set  out. 

The  opportunities  for  education  during  his  youth  were 
exceedingly  limited.  With  the  preliminary  aid  of  his 
mother,  however,  and  the  instruction  afforded  afterwards 
at  a  school  house  or  shanty,  about  a  mile  from  his  home, 
on  the  banks  of  Sherman's  creek,  he  acquired  a  know- 
ledge of  reading,  writing,  and  arithmetic.  At  this 
school  he  remained  three  years,  at  the  charge  of  twenty 
shillings  a  year,  and  it  is  not  improbable  that  his  gene- 
ral improvement  might  be  fairly  graduated  by  its 
expense.  After  leaving  the  school,  for  some  years 
his  habits  became  sedentary,  and  the  advantage  of 
self-instruction,  and  his  devotion  to  books,  so  far  ad- 
vanced his  knowledge  as  to  qualify  him,  in  the  year 
1797,  at  the  age  of  eighteen,  to  enter  the  grammar 
school  attached  to  Dickinson  college.  Here  he  re- 
mained two  years,  and  made  not  merely  rapid,  but 
extraordinary,  progress,  astonishing  not  only  his  rivals, 
but  his  professors.  He  was  of  course  rapidly  promoted, 
and  finally  entered  the  junior  class  of  the  college  in 
1800,  in  the  twentieth  year  of  his  age. 

He  was  a  cotemporary  and  rival  of  William  Wilkins, 
of  Pittsburg,  afterwards  so  distinguished  in  the  annals 
of  this  State  and  country,  and  George  Bullit,  a  gentle- 
man of  Virginia,  a  young  man  of  the  first  talents  and 
attainments.  It  is  enough  to  say,  that,  with  such  com- 


JOHN    BANNISTER    GIBSON,    L.L.D.  421 

petitors,  even  with  the  disadvantage  of  early  imperfect 
culture,  he  successfully,  if  not  triumphantly,  maintained 
his  post.  He  passed  with  great  distinction  through 
the  studies  of  the  senior  class,  and  in  the  early  part  of 
1801,  without  matriculating,  he  commenced  the  study 
of  the  law  under  his  celebrated  kinsman,  the  late  Judge 
Duncan,  and  was  admitted  to  practice  after  the  usual 
course  of  reading,  in  the  month  of  March,  1803. 
During  his  connexion  with  Dickinson  college,  (we  men- 
tion this  as  an  illustration  of  his  attachment  through 
life  to  medical  science,)  he  was  in  the  habit  of  fre- 
quenting the  office  of  one  of  the  oldest  practitioners  of 
medicine  of  that  period  and  place,  Dr.  M'Coskrey,  the 
father  of  the  present  Bishop  M'Coskrey.  Here,  as 
might  be  supposed,  he  acquired  a  taste  for  the  study 
of  physic,  which  he  never  lost — poring,  as  he  did,  for 
days  at  a  time,  over  the  volumes  contained  in  an  exten- 
sive, and  systematic  scientific  library. 

The  knowledge  here  derived,  in  after  time,  as  we 
know,  was  not  unfrequently  put  into  practical  applica- 
tion upon  many  occasions,  during  his  official  sojourn 
in  various  parts  of  the  State.  We  have  no  time  to 
exhibit  in  detail  the  numerous  occurrences  of  this  kind; 
but  almost  the  very  last  opinion  he  delivered,  furnishes 
a  brief  but  sufficient  instance  of  his  attainments.  We 
refer  to  the  case  of  Smith  against  Cramer,  pronounced 
but  a  little  month  before  his  decease.  It  was  a  ques- 
tion, as  to  the  admission  of  evidence)  to  show  the 


422  THE  FORUM. 

insanity  of  ancestors,  for  the  purpose  of  corroborating 
other  testimony,  tending  to  establish  the  insanity  of  a 
testator.* 

"  I  admit  the  deposition  without  hesitation,  notwithstanding  the 
dicta  of  Mr.  Shelford,  (Treat,  on  Lunacy,  59,)  and  Mr.  Chitty, 
(Med.  Jurisp.  355,)  that c  it  is  an  established  rule  of  law  not  to  ad- 
mit proof  of  insanity  in  other  members  of  the  family  in  civil  or 
criminal  cases.'  Established !  When,  where,  and  by  whom  ?  Cer- 
tainly not  by  the  House  of  Lords  in  McAdam  v.  Walker,  1  Dow's 
Par.  Ca.  148,  the  only  case  cited  for  it,  for  the  question  there  was 
avowedly  dodged.  That  High  Court  would  not  shock  common  sense 
by  affirming  the  order  of  the  Scotch  Court  of  Session ;  nor  would  it 
gratuitously  reverse  it,  when  the  decision  could  be  safely  put  on 
another  ground.  The  authority  of  a  judgment  appealed  from,  and 
left  in  dubio,  cannot  be  very  great.  Sir  Samuel  Romilly's  argu- 
ment against  the  evidence,  was  rested  on  the  fecundity  and  interrni- 
nableness  of  collateral  issues ;  and  Mr.  Chitty  seems  to  have  had  a 
glimpse  of  the  same  idea,  when  he  said  the  course  is  to  confine  the 
evidence  to  the  mental  state  of  the  party.  But  every  new  fact, 
though  it  open  a  new  field  of  inquiry,  is  not  collateral.  It  may  bear 
directly  on  the  fact  in  contest ;  and,  where  it  does  so,  it  is  not  in  the 
power  of  the  Court  to  shut  it  out.  A  collateral  issue  is  such  as 
would  be  raised  by  allowing  a  party  to  put  a  question  to  a  witness 
on  cross-examination,  in  regard  to  a  fact  palpably  unconnected  with 
the  cause,  in  order  to  afford  an  opportunity  to  discredit  him  by  con- 
tradicting him;  but  does  not  proof  of  hereditary  madness  bear 
directly  on  the  condition  of  the  mind,  which  is  the  subject  of  inves- 
tigation ?  What  if  the  point  had  been  ruled  by  the  Chancellor  and 
law  judges  in  the  House  of  Lords?  Profoundly  learned  in  the 

*  1  American  Law  Journal,  page  353.     February,  1853. 


JOHN    BANNISTER    GIBSON,    L.L.D.  423 

maxims  of  the  law,  they  were  profoundly  ignorant  of  the  lights  of 
physiology;  yet,  free  from  the  presumptuousness  of  which  ignorance 
is  the  foster-father,  they  refused  to  rush  on  the  decision  of  a  ques- 
tion to  which  they  felt  themselves  incompetent.     Mr.  Chitty  fanci- 
fully puts  the  solution  of  questions  of  insanity  on  the  doctrine  of 
legal  presumptions.     '  As  the  imputation,'  he  says, '  is  contrary  to 
the  natural  presumption  of  adequate  intellect,  the  deficit  should  be 
established  by  direct  and  positive  evidence,  and  not  merely  be  con- 
jectural or  probable  proof.'     If  that  be  law,  a  question  of  insanity 
is  the  only  one  in  which  positive  evidence  is  required,  and  circum- 
stantial evidence  to  corroborate  is  rejected.     Why  is  evidence  of  an 
old  grudge  admitted  against  a  prisoner,  as  a  remote  proof  of  malice, 
if  the  remote  proof  of  hereditary  insanity  may  not  be  given  by  him 
to  rebut  it ;  and  why  should  the  presumption  of  sanity  be  allowed 
to  overbear  the  presumption  of  innocence,  the  strongest  of  them  all  ? 
I  admit  that  hereditary  insanity  will  not  itself  make  out  a  case  for 
or  against  a  member  of  the  family ;  but  to  say  that  it  may  not  cor- 
roborate what  Mr.  Chitty  calls  direct  and  positive  proof,  without 
defining  it,  staggers  all  belief.    In  a  measuring  cast,  it  ought  to  pre- 
vail.   He  says  harsh  conduct,  bursts  of  passion,  or  displays  of  unna- 
tural feeling,  will  not,  of  themselves,  establish  insanity.     Be  it  so. 
But  because  the  springs  of  such  actions  are  concealed,  are  they  never 
to  be  laid  bare,  and  shown  to  be  seated  in  the  blood  ?     When  it  is 
admitted  by  Mr.  Chitty  and  Mr.  Shelford  themselves,  that  insanity 
is  a  descendible  quality,  they  give  up  the  argument.     There  can  be 
nothing  unreasonable  in  referring  wild,  furious,  and  unnatural  actions, 
not  otherwise  accounted  for,  to  the  aberrations  of  a  mind,  the  reflex 
of  that  of  a  crazy  father.     Mr.  Taylor,  a  distinguished  lecturer  on 
Medical  Jurisprudence  in  Guy's  Hospital,  London,  says  that,  'in 
making  a  diagnosis  of  a  case  of  insanity,  the  first  question  put  is 
commonly  in  reference  to  the  present  or  past  existence  of  the  disor- 
der in  other  members  of  the  family.     There  can  be  no  doubt,  from 


424  THE  FORUM. 

the  concurrent  testimony  of  many  writers  on  insanity,  that  a  dispo- 
sition to  the  disease  is  frequently  transmitted  from  parent  to  child, 
through  many  generations.  M.  Esquirol  has  remarked,  that  this 
hereditary  taint  is  the  most  common  of  all  the  causes  to  which  in- 
sanity can  be  referred.'  (Taylor  on  Med.  Jurisp.  502.)  M.  Esqui- 
rol was,  in  1838,  and  perhaps  is  still,  the  principal  physician  of  the 
hospital  for  the  insane  at  Charenton,  in  France,  and  a  member  of 
the  Royal  Academy  of  Medicine,  at  Paris.  His  tables  of  insanity 
are  held  in  high  repute  by  not  only  the  physicians  of  France,  but  of 
Europe.  Well  might  Mr.  Taylor  say  that  these  things  ought  to  be 
borne  in  mind  by  medical  jurists.  The  knowledge  attained  by  men, 
of  a  subject  with  which  they  have  grappled  all  their  lives,  ought 
surely  to  prevail  against  knowledge  gleaned  from  the  hornbooks  of  a 
profession  to  which  the  gleaners  did  not  belong.  Strange  that  a 
source  of  information,  open  to  every  one  else,  should  be  closed  to 
those  who  are  to  pass  on  the  fact  Every  man  has  observed  that 
there  are  families,  through  which  insanity  has  been  handed  down 
for  generations ;  and  why  should  the  probability  of  hereditary  mad- 
ness be  excluded,  when  probabilities  in  other  cases  are  weighed  j 
especially  when  it  is  known  that  a  proclivity  to  theft,  intemperance, 
lying,  cheating,  and  almost  all  other  moral  vices,  are  as  transmissi- 
ble as  gout,  consumption,  deafness,  blindness,  and  almost  all  other 
constitutional  diseases  ?  It  is  supposed  by  the  million  that  insanity 
is  a  disease  of  the  mind,  not  of  the  body.  Ridiculous.  If  it  were , 
it  could  never  be  cured;  for  the  mind  cannot  take  physic,  or  be 
separately  treated ;  yet  the  statistics  of  the  insane  exhibit  a  great 
number  of  cures ;  and  the  time  is  fast  coming  when  insanity  will  be 
considered  the  most  manageable  disease  that  flesh  is  heir  to. 

"  An  objection  to  an  inquisition,  which  does  not~  disclose  the  spe- 
cific nature  of  the  ancestor's  infirmity,  might  stand  in  a  different 
light  j  but  testimony,  which  brings  the  fact  of  madness  home  to  him, 
ought  to  be  received  like  evidence  of  family  likeness,  which,  though 


JOHN    BANNISTER    GIBSON,    L.L.D.  425 

less  reliable,  was  allowed  to  be  corroborative  proof  of  paternity  in 
the  Douglass  Peerage  Case,  in  1767,  and  again  in  the  Townsend 
Peerage  Case,  in  1843.  Lord  Mansfield  said  in  the  former,  that  he 
had  always  considered  likeness,  as  an  argument  of  a  child  being  the 
son  of  a  parent ;  that  a  man  may  survey  ten  thousand  people,  before 
he  sees  two  faces  exactly  alike,  and  that,  in  an  army  of  a  hundred 
thousand  men,  every  man  may  be  known  from  another;  that  if 
there  should  be  a  likeness  in  feature,  there  may  be  a  difference  in 
the  voice,  gesture,  or  other  characters ;  whereas  family  likeness  runs 
generally  through  all  of  these;  for  that  in' everything  there  is  a  re- 
semblance, as  of  features,  voice,  attitude,  and  action.  Might  he 
have  not  added  the  diathesis  of  the  brain  ?  He  doubtless  might  if 
the  point  had  been  mooted.  In  prosecutions  for  bastardy,  the  prac- 
tice in  the  Quarter  Sessions  was,  in  my  day,  not  exactly  to  give  the 
child  in  evidence,  but  to  put  it  before  the  jury,  sometimes  by  the 
prosecutor,  and  sometimes  by  the  putative  father.  But  ancestral 
irregularity  in  the  action  of  the  brain  is  more  frequently  transmit- 
ted than  any  resemblance  in  form  or  feature ;  and  it  is  difficult  to 
imagine  an  objection  to  evidence  of  it,  for  purposes  of  corrobora- 
tion." 

In  the  year  of  his  admission  to  the  Bar,  he  left  the 
scenes  of  his  boyhood,  by  the  advice  of  his  friends,_and 
commenced  practice  at  Beaver  county,  one  of  the  re- 
motest parts  of  the  State,  but,  in  the  language  of 
Johnson,  "  Slow  rises  worth  by  poverty  oppressed ;" 
and  very  soon,  discontented,  if  not  disgusted,  he  aban- 
doned the  place  of  his  first  choice,  for  ever. 

Leaving  Beaver,  he  afterwards  attempted  to  settle 
himself  at  Hagerstown,  Maryland,  but  with  no  better 
success;  and  finally  returned,  in  1805,  to  ^  Carlisle. 

VOL.  L— 28 


426  THE  FORUM. 

There  he  opened  his  office,  and  for  some  years  seemed 
to  have  a  reasonable  share  of  the  legal  practice  of  Cum- 
berland county,  and  maintained  his  ground  with  such 
men  as  Duncan,  Watts,  Bowie,  of  York,  and  Charles 
Smith,  of  Lancaster,  lawyers,  who,  at  the  time  of 
which  we  speak,  had  but  few  equals  in  the  State. 

Notwithstanding  his  professional  employment,  how- 
ever, his  versatility  or  eccentricity  of  genius,  led  him 
readily  to  engage  in  almost  every  amusement  or  merri- 
ment that  was  suggested ;  and  when  the  students  of 
Dickinson  college  gave  theatrical  exhibitions  at  the 
United  States  barracks,  he  not  only  directed  the  stage 
arrangements,  but  actually  painted  the  scenery.  And 
what  now  (nearly  fifty  years  after,)  must  strike  us  with 
no  little  surprise,  a  most  distinguished  lawyer  took  the 
part  of  prompter,  and  Francis  Gibson,  an  elder  bro- 
ther of  the  Judge,  who  recently  died,  became  leader 
of  the  orchestra,  on  account  of  his  superior  knowledge 
of  the  violin.  The  times  have  changed,  and  we  have 
changed  with  them. 

It  was  about  this  period  of  his  professional  career, 
that  a  friend  called  upon  him,  with  the  information 
that  a  fellow-member  of  the  bar  had  grossly  and  wan- 
tonly assailed  his  (Mr.  Gibson's,)  character;  where- 
upon, Gibson,  who  was  a  man  of  herculean  strength 
and  lofty  spirit,  meeting  the  alleged  slanderer  soon 
after,  inflicted  upon  him,  publicly,  severe  personal 
chastisement.  But  what  was  his  dismay  to  learn, 


JOHN    BANNISTER    GIBSON,    L.L.D.  427 

shortly  after,  that  his  informant  had  made  a  mistake 
in  his  report,  and  that  another  person  was  the  calum- 
niator. To  add  to  his  perplexity,  a  challenge  was  re- 
ceived from  the  victim  of  his  hasty  and  misdirected 
severity.  "This,"  said  Gibson,  "is  a  bad  business, 
and  it  is  difficult  to  mend  it;  but,  at  least,  having 
got  into  it,  I  will  complete  it.  I  shall  accept  the  chal- 
lenge, of  course ;  I  am  bound  to  do  so,  for  my  folly,  if 
not  my  fault ;  but,  before  I  am  shot,  I  must  at  least 
perform  an  act  of  justice,  and  having  now  found  out 
the  real  slanderer,  I  will  flog  him  at  once ;"  which  was 
accordingly  done.  Upon  the  matter  being  explained  to 
the  challenger,  and  an  ample  apology  made,  the  duel, 
we  are  happy  to  say,  was  avoided,  and  the  whole  affair 
amicably  adjusted,  through  the  friendly  interference  of 
the  late  Judge  Duncan. 

In  1810,  Mr.  Gibson  became  a  member  of  the  Penn- 
sylvania legislature,  and  soon  after  his  term  of  service 
expired,  in  1812,  was  appointed  President  Judge  of 
the  Court  of  Common  Pleas,  for  Tioga  county.  On  the 
eighth  of  October,  in  the  same  year,  he  was  united 
in  marriage  to  Sarah  Galbraith,  the  daughter  of  a  re- 
tired Revolutionary  officer,  a  lady  of  no  inconsiderable 
intellectual  accomplishments,  and  of  a  most  amiable  dis- 
position. 

Upon  the  death  of  Judge  Breckenridge,  in  1816, 
Judge  Gibson  was  translated  to  the  Supreme  Court 
by  Governor  Snyder,  where,  while  Tilghman  was  the 


428  THE  FORUM. 

Nestor,  lie  may  be  said  to  have  been  the  Ulysses,  of 
the  Bench. 

We  may  be  here  permitted  to  mention,  (a  fact  not 
generally  known,)  that  a  short  time  after  taking  his 
seat,  he  was  solicited  by  a  committee  from  the  demo- 
cratic portion  of  the  legislature,  to  suffer  himself  to  be 
put  in  nomination  for  the  office  of  Governor  of  Penn- 
sylvania. This  honor,  however,  he  promptly  declined, 
having  determined  to  direct  all  his  energies  and  time 
to  the  duties  of  the  situation  which  he  had  assumed. 
In  1827,  he  succeeded  the  lamented  Tilghman,  as 
Chief  Justice  of  the  Supreme  Court  of  Pennsylva- 
nia, and  the  spotless  mantle  of  his  predecessor,  as 
all  shall  witness,  was  borne  by  him  for  more  than 
twenty  years,  if  not  with  equal  grace,  with  equal 
lustre. 

It  would  seem,  that  before  directing  our  attention 
to  the  mind,  we  should  bestow  a  passing  notice  upon 
the  person.  Judge  Gibson  was  a  man  of  large  pro- 
portions; in  height,  about  six  feet  four  inches,  and 
of  a  muscular  frame.  His  face  was  full  of  intel- 
lect, sprightliness,  and  benevolence,  and  of  course, 
eminently  handsome;  his  manners  were  remarkable 
for  their  simplicity,  warmth,  frankness,  and  gene- 
rosity. There  never  was  a  man  more  free  from  affec- 
tation or  pretension  of  every  sort.  It  has  been  said 
by  one  of  his  associates,  that  he  was  not  a  good 
hater ;  but  no  man  ever  truly  said  that  he  was  not  a 


JOHN    BANNISTER    GIBSON,    L.L.D.  429 

good  friend,  and  a  most  agreeable,  convivial,  and  esti- 
mable companion. 

He  was  a  deep  student,  but  not  a  close  student;  he 
worked  most  effectively,  but  he  worked  reluctantly. 
His  mind  was  too  comprehensive  to  admit  of  ready 
concentration.  The  veins  of  his  learning  crossed  each 
other  and  diverted  attention,  but  when  he  brought  the 
lens  of  his  mind  to  a  focus,  its  power  was  resistless,  and 
every  man  seemed  to  perceive  and  to  feel  it,  but  himself. 

Unlike  Washington,  he  was  not  a  good  Nisi  Prius 
Judge.  In  the  conflicts  of  a  jury  trial,  he  was  not  a 
good  listener ;  he  would  not  unfrequently  be  employ- 
ed in  writing  poetry  or  drawing  some  fancy  sketch, 
when  the  bar  supposed  he  was  closely  engaged  in 
noting  the  course  of  the  evidence,  or  preparing  his 
opinion.  And  in  rather  a  merry  way,  he  once  re- 
marked, that  he  had  reached  at  last  the  object  of  his 
highest  ambition,  which  was  to  keep  his  eye  fixed 
upon  a  dull  speaker,  while  his  thoughts  were  employed 
with  more  agreeable  objects.  "  This,"  he  added,  "  is 
certainly  a  great  judicial  triumph." 

He,  as  has  been  said,  liked  the  law  as  a  science,  but 
abhorred  it  in  its  practical  and  minute  details.  He 
never  could  have  been  an  eloquent,  forensic  speaker ; 
but  he  was,  if  we  may  use  the  phrase,  an  eloquent 
thinker,  and  a  most  agreeable  colloquist.  He  was,  at 
times,  a  little  rough;  but  still,  even  then,  the  benig- 
nity and  pleasantness  of  his  countenance  satisfied  every . 


430  THE 

one  that  the  harshness  of  his  manner,  sprung  from  no 
bitterness  of  the  heart. 

The  court  was  about  to  riss  one  day,  the  usual  hour 
of  adjournment  having  come,  when  a  zealous  young 
gentleman  insisted  upon  reading  a  petition  for  a  quo 
warranto.  The  Chief  Justice  expressed  his  unwilling- 
ness to  hear  it.  "I  have  a  constitutional  right  to 
speak,"  said  the  advocate.  "  That  is  true,"  said  Gib- 
son, "but  the  constitution  does  not  compel  us  to  listen; 
but  if  you  insist  upon  it,  go  on,  and  as  Sir  Toby  Belch 
says,  '  be  curst  and  brief.' " 

To  say  nothing  of  hatred,  he  entertained  no  anger, 
and  never  seemed  to  imagine  that  he  had  excited 
any  in  others.  If  you  would  remind  him  of  some 
occasional  severity  of  remark,  he  would  seem  to  have 
been  utterly  unconscious  of  it,  and  almost  led  you 
to  suppose  that  the  offence  rather  arose  from  your 
captiousness,  than  from  his  design.  As  he  bore  no 
grudge  to  others,  he  rendered  it  difficult  for  others 
to  bear  any  towards  him.  Take  him  for  all  in  all, 
he  was  a  man  of  rare  endowments,  of  a  harmonious, 
moral  and  intellectual,  judicial  and  social  structure ; 
and,  although  we  may  find  others  superior  to  him  in 
some  one  great  quality,  in  the  combination  of  his 
talents,  "  he  spoke  unbonnetted  to  as  proud  a  fortune 
as  that  which  he  had  reached" — the  Chief  Justiceship 
of  the  State  of  Pennsylvania. 

Chief  Justice  Tilghman  died  on  the   thirtieth  of 


JOHN    BANNISTER    GIBSON,    L.L.D. 

April,  1827,  and  on  the  eighteenth  of  the  following 
month  Judge  Gibson  was  appointed  to  supply  his 
place.  From  that  period,  conscious  of  his  responsi- 
bilities, and  bearing  in  mind  the  high  judicial  stand- 
ard established  by  his  predecessors,  he  appeared  to 
devote  all  his  great  powers  to  the  fulfilment  of  the 
duties  of  his  vocation ;  so  that,  as  an  honorary  reward 
of  his  distinguished  abilities,  he  some  time  after  re- 
ceived from  the  University  of  Pennsylvania,  the  degree 
of  Doctor  of  Laws,  which  was  soon  followed  by  a  simi- 
lar degree  from  the  University  of  Cambridge. 

On  the  nineteenth  of  November,  1838,  he  resigned 
his  commission  as  Chief  Justice,  and  was  at  once  re-ap- 
pointed by  Governor  Bitner.  The  constitution  of  1838, 
substituting  a  term  of  years,  for  life  appointments,  hav- 
ing been  approved  by  the  people,  the  commissions  were 
to  expire  at  intervals  of  three  years,  in  the  order  of 
seniority,  from  first  of  January,  1839.  By  resigning, 
Judge  Gibson,  under  this  law,  instead  of  being  subject 
to  the  shortest  term — three  years — would  hold  the 
longest — fifteen  years.  "The  proposal,"  says  Mr.  Por- 
ter, "  seems  to  have  been  made  by  his  associates  and 
accepted  by  Mr.  Gibson,  with  slight  consideration."* 
We  should  think  so ;  for  there  certainly  never  was  a 
more  injudicious  step  among  judicious  and  judicial  men ! 
It  injuriously  affected  the  whole  court,  and  no  reasoning 
can  excuse,  much  less  justify  it. 

*  William  A.  Porter's  Essay  upon  the  Life,  Character,  and  Writings 
of  Chief  Justice  Gibson,  page  53. 


432  THE  FORUM. 

Judge  Gibson,  if  he  were  not  guilty  of  a  fault,  cer- 
tainly committed  a  great  mistake  in  this  resignation ; 
or  rather,  in  accepting  a  renewed  appointment:  He 
never  could  satisfy  any  one,  nor  do  we  think  he  ever 
satisfied  himself — when  he  came  to  reflect — of  the  pro- 
priety of  the  course  thus  adopted.  It  was  perfectly 
useless  for  him  -to  say,  that  when  he  resigned,  there 
was  no  understanding  that  he  should  be  re-appointed. 
The  object  clearly  was  to  prolong  his  term  of  office ; 
otherwise,  having  resigned,  why  did  he  accept  the  re- 
newed appointment  to  the  same  post  ?  Nay,  his  very 
statement,  that  at  his  time  of  life  and  with  his  means, 
his  condition  would  have  been  that  of  "  penury  and 
want,"  shows  that  the  resignation  was  not  intended, 
but  had  for  its  object  a  longer  continuance  in  office. 

The  reference  to  the  acquiescence  of  the  other  judges 
in  the  measure  adopted  by  him,  implies  also,  that  his 
object  was  to  remain  on  the  bench;  and  shows,  plainly, 
that  he  gave  up  -the  post,  that  it  might  be  restored  with 
greater  advantages — advantages,  too,  at  the  expense 
of  his  associates.  The  act  itself  was  wrong,  and  the 
reasons  assigned  for  it  make  it  worse,  as  they  show  a 
consciousness  of  the  very  error  which  they  attempt  to 
palliate. 

From  the  moment  of  the  unhappy  surrender  of  his 
own  sense  of  right,  Judge  Gibson  never  was  the  man 
he  had  previously  been — he  was  humbled,  by  the  per- 
petual consciousness  that  he  had  acted  indiscreetly, 


JOHN    BANNISTER    GIBSON,    L.  L.  D.  433 

and  placed  his  high  character  in  jeopardy  or  doubt. 
His  companions  on  the  bench,  though  too  generous  to 
show  it — and  however  regardless  of  their  personal  in- 
terests— felt  that  the  integrity  of  the  tribunal  was 
compromised ;  and  the  public  at  large  looted  upon  this 
judicial  strategy  with  surprise  and  evident  disapproval. 

It  is  hard,  to  be  sure,  as  we  have  elsewhere  said, 
to  relinquish  office  and  the  hopes  of  life  together ; 
but  it  is  because  it  is  hard,  that  it  is  sometimes  mag- 
nanimous. "'Tis  the  rough  brake  that  virtue  must 
go  through."  No  one  can  doubt  our  high  regard  for 
the  Chief  Justice,  but  that  regard  rests  upon  his 
virtues — not  upon  his  defects ;  and  all  commendation 
of  the  former,  would  be  fulsome  flattery,  if  we  did  not 
condemn  the  latter.  This  was  but  a  spot,  the  only 
spot  upon  his  escutcheon ;  but  it  was  an  odious  spot, 
and  to  attempt  to  excuse  it,  would  be  to  recommend 
it  to  judicial  favor  and  imitation.  Place  it  on  the 
ground  of  a  solitary  indiscretion,  and  the  influence  of 
unhappy  circumstances,  if  you  will,  but  never  attempt 
to  justify  for  him,  what,  with  his  great  head  and  excel- 
lent heart,  he  was  unable  to  justify  to  himself. 

The  public,  out  of  regard  for  his  great  services,  dealt 
liberally  with  him;*  they  overlooked  this  single  in- 

*  Almost  the  only  reference  we  ever  heard  made  to  this  matter,  was  its 
having  been  once  said,  iu  no  unkind  spirit,  that  just  after  the  Chief  Justice's 
resignation  he  attended  the  Episcopal  church,  of  this  city,  when  the  cler- 
gyman took  for  his  text,  2  Kings,  twentieth  chapter  and  sixth  verse : — 
"  I  will  add  unto  thy  days,  fifteen  years." 


434  THE  FORUM. 

firmity — they  never  cast  it  in  his  teeth  while  living, 
nor  upon  his  memory  when  dead.  Let  it  then  die  for- 
ever— or,  at  all  events,  not  be  revived  to  be  excused. 

Judge  Gibson  would  have  been  a  great  physician,  a 
great  general,  a  great  historical  painter,  an  eminent 
professor  of  music,*  but  he  never  could  have  been  a 

*  Judge  Gibson,  as  an  amateur  musician,  was  perhaps  unequalled  in 
the  United  States.  He  was  a  perfect  devotee  to  the  violin,  to  which  he 
always  resorted  as  a  relief  from  the  severity  of  his  judicial  toils.  This 
habit  led,  though  very  remotely,  to  no  inconsiderable  exposure  and  em- 
barrassment. The  way  of  it  was  this : — 

When,  as  Chief  Justice,  presiding  at  a  Superior  Court  at  Williamsport, 
he  one  morning  entered  the  bar  room  of  his  hotel,  and,  observing  a  violin 
lying  there,  he  picked  it  up,  and  drew  from  it,  as  usual,  some  exquisite 
strain?  of  harmony.  A  gentleman  who  was  present,  however,  reminding 
him  that  it  was  the  Sabbath-day,  he  immediately  relinquished  the  instru- 
ment, and  apologized  for  his  forgetfulness.  A  short  time  after  this  the 
story  got  wind,  and  a  political  adversary  of  his,  who  conducted  a  news- 
paper, published  a  highly-colored  account  of  the  occurrence,  very  much 
to  the  annoyance  of  the  Chief  Justice.  Indeed,  so  much  did  he  feel  him- 
self aggrieved,  that,  instead  of  treating  the  matter  with  indifference  or 
contempt,  he.  came  out  in  a  rival  journal  with  an  explanation  of  the 
whole  affair,  excusing  himself  for  an  apparent  infraction  of  the  Sabbath, 
by  alleging  that  he  had  forgotten  the  day.  It  so  happened  that,  some 
years  after  this,  one  of  his  associates  was  brought  before  a  committee  of 
the  Legislature  upon  a  charge  of  incompetency,  on  the  ground  of  inferi- 
ority of  judgment  and  want  of  memory. 

The  Chief  Justice  was  subpoenaed  before  the  committee  to  give  testi- 
mony ;  and,  though  very  reluctantly,  he  gave  evidence  calculated  to  sup- 
port the  charges.  He  was  then  handed  over  to  the  respondent,  who 
conducted  his  own  defence,  for  cross-examination,  when  the  following 
mortifying,  though  somewhat  ludicrous,  dialogue  took  place : — 

Associate. — "  You  say,  sir,  that  you  consider  my  memory  defective  ?" 


JOHN    BANNISTER    GIBSON,    L.L.D.  435 

distinguished  attorney.  He  had  a  detestation  of  minute 
labors,  and  complicated  or  diversified  details.  Give  him 
the  question,  and  no  man  could  grasp  it  more  firmly,  or 
dispose  of  it  more  readily,  or  divest  it  more  clearly 
of  the  fallacious  reasoning  by  which  it  was  attempted 
to  be  assailed  or  supported,  but  he  would  not  descend 
into  details.  He  delighted  in  ratiocination,  but  ab- 
horred the  laborious  detail  of  heterogeneous  facts, 
which  too  often  tend  to  bewilder  and  confound  rather 
than  to  enlighten  and  direct  the  mind.  Among  emi- 
nent painters  and  sculptors,  the  ascription  of  merit  is 

Chief  Justice. — "I  have  said  so,  and  I  regret  to  think  so." 

Associate. — "  Did  you  ever  know  me  upon  any  occasion  to  forget  the 
Lord's  holy  day — the  Sabbath  ?" 

Chief  Justice. — "  I  have  no  such  recollection." 

Associate. — "You  have  stated  that  you  consider  my  judgment  im- 
paired?" 

Chief  Justice. — "  Such  is  my  belief,  and  I  have  had  some  opportunities 
of  knowing." 

Associate. — "  Pray,  sir,  did  you  ever  know  me  to  be  guilty  of  the  weak- 
ness and  folly  of  answering  a  paragraph  in  an  obscure  country  news- 
paper, charging  me  with  playing  the  fiddle  on  Sunday,  and  to  put  my 
defence  against  the  charge — upon  the  ground  of  my  having  forgotten 
the  day  ?" 

This  was,  of  course,  unanswerable.  The  Associate  triumphed,  and  all 
further  proceedings  were  abandoned.  There  are  emergencies  in  life 
which,  even  when  the  human  faculties  are  almost  extinct,  seem  to  recall 
them  in  their  pristine  vigor,  and  this  was  one  of  them.  We  have  heard 
it  said,  that  the  Associate  referred  to,  had  never  been  known,  in  his 
best  days,  to  manifest  greater  ability  than  in  the  management  of  his  own 
cause  upon  this  memorable  occasion. 


436  THE  FORUM. 

regulated  by  the  difference  between  those  who  resort 
to  minor  details,  and  those  whose  genius  generalizes 
the  work,  and  thereby  produces  the  desired  effect  upon 
the  beholder.  The  latter  always  holding  the  most  dis- 
tinguished position.  Composition,  as  it  is  called  and 
subordination,  being  the  loftiest  branches  of  the  arts, 
since  they  manifest  most  mind;  and  mind  in  every- 
thing, is  everything. 

In  his  social  intercourse  he  had  this  remarkable 
quality,  in  which  he  strongly  resembled  Alexander 
Hamilton.  He  rarely  spoke  on  the  subject  of  law. 
Poetry,  music,  and  painting  were  his  themes,  and  his 
great  delight ;  and  for  a  good  joke,  or  an  agreeable  and 
harmless  story,  very  often  at  his  own  expense,  (traits 
which  he  probably  derived  from  his  father,)  no  man 
was  his  superior.  He  used  to  relate,  with  infinite 
humor,  his  first  adventure  in  professional  life  : — 

"  I  was,"  said  he,  "brought  up  like  a  young  savage,  in  leaping, 
hunting,  boxing,  and  all  other  athletic  employment.  Study  scarcely 
sobered  me.  At  length,  in  1803,  after  having  been  struggling 
with  adversity  for  years,  I  was  admitted  to  practice,  and  deter- 
mined to  make  my  commencement  as  far  from  the  scene  of  my 
early  folly  or  faults  as  possible.  I,  therefore,  at  the  instance  of 
Mr.  Wilkins,  made  choice  of  Beaver  county,  on  the  river  Ohio. 
By  hard  scuffling,  I  succeeded  in  purchasing  a  small  horse  or  cob, 
some  fourteen  hands  high ;  and  having  taken  leave  of  my  fond 
mother  and  my  friends,  I  accordingly  set  out  in  search  of  profes- 
sional adventures,  with  scanty  purse  and  saddle-bags,  and  an  empty 
green  bag.  Not  like  Dr.  Syntax,  in  search  of  the  picturesque,  but 


JOHN    BANNISTER    GIBSON,    L.L.D.  437 

like  a  poor  lawyer,  in  pursuit  of  a  brief.  Some  short  distance 
from  Beaver,  I  was  particularly  struck  with  the  ridiculous  appear- 
ance made  by  myself  and  horse ;  the  animal,  as  I  have  said,  was 
too  short,  and  I  was  too  long ;  my  feet  nearly  reached  the  ground. 
Added  to  this,  the  character  of  my  equestrian  equipment  was  by 
no  means  calculated  to  relieve  me  from  my  embarrassment.  Just 
in  the  midst  of  this  quandary,  I  heard  rapidly  approaching  from 
behind,  a  horseman,  who  was  almost  immediately  by  my  side ;  and 
with  the  familiarity  of  the  times  and  place,  he  saluted  me  with, 
'  Well,  stranger,  would  you  like  to  swop  horsesj"-  Before  answer- 
ing, I  took  a  glance  at  his  animal,  which  appeared  to  be  some 
seventeen  hands  high,  and  though  rather  raw-boned,  much  better 
adapted  to  my  size  than  the  horse  I  rode.  Suffice  it  to  say,  that 
after  a  little  chaffering,  the  swop  was  made,  and  I  paid  five  dollars 
to  boot ;  the  trappings  were  removed,  and  every  thing  being  ad- 
justed, the  Yankee  mounted,  and  it  appeared  to  me,  that  he  at 
once  infused  new  life  into  my  beast,  for  he  set  off  in  a  gait  that  he 
had  been  utterly  unused  to.  Rider  and  horse  were  soon  out  of 
sight,  and  mounting  my  new  purchase,  I  could  not  but  perceive 
that  he  seemed  all  at  once,  to  have  lost  as  much  alacrity  as  the 
other  had  gained.  However,  as  I  have  said,  I  mounted  him,  but 
had  not  proceeded  a  hundred  yards,  before  he  fell  flat  upon  his 
nose  and  threw  me  over  his  head.  This  led,  of  course,  into  an 
examination  of  his  condition,  upon  which  I  found  that  the  horse 
was  actually  stone  blind.  I  was  lawyer  enough,  even  then,  to  know 
that  as  this  was  a  patent  defect  that  I  was  bound  to  look  to,  and  as 
/was  not  blind,  the  blindness  of  the  horse  gave  me  no  right  of 
action,  even  if  I  could  have  found  the  defendant;  so  I  pocketed 
the  loss,  and  the  Yankee  pocketed  my  five  dollars,  and  rode  off 
with  my  horse.  This  was  my  first  adventure,  and  from  such  an 
ominous  beginning,  it  is  hardly  to  be  supposed  that  my  career  in 
Beaver — which,  thank  heaven,  was  but  short — was  very  prosper- 
ous. I  gained  experience,  -however,  if  not  in  swopping  horses,  in 


438  THE  FORUM. 

avoiding  it ;  and  in  future  I  looked  at  the  eyes,  as  well  as  the  size, 
of  a  horse ;  in  other  words,  to  alter  the  lines  of  a  poet — '  I  rate  no 
horse's  merit  from  his  size.'  " 


The  late  Chief  Justice  was  not  what  would  be  called 
a  refined  modern  gentleman ;  that  is,  a  man  in  whom 
the  arts  of  society  had  suspended,  if  not  extinguished, 
the  charms  of  nature.  With  sufficient  amenity  and 
courtesy,  his  great  value  consisted  in  the  generous 
outbursts  of  the  heart,  in  defiance  of  those  conven- 
tional restraints  which  station  and  official  position 
would  seem  to  impose  upon  ordinary  men.  He  was 
sincere,  but  never  ostentatious.  He  adopted,  in  the 
exercise  of  his  charitable  feeling,  the  divine  injunction, 
"  Let  not  thy  left  hand  know  what  thy  right  doeth." 
No  man  ever  heard  him  speak  of  his  own  virtues,  and 
no  one  ever  heard  him  deny  the  virtues  of  others.  If 
you  will  visit  an  obscure  burial-place  in  the  town  of 
Harrisburg,  you  will  there  find  a  plain,  but  tasteful 
monument,  with  this  inscription :  "  To  Joseph  Jeffer- 
son, the  comedian.  ( Alas,  poor  Torick !  I  knew  him 
well ;  he  was  a  fellow  of  infinite  humor.' "  That  tomb 
was  erected  to  the  memory  of  our  old  friend  Jeffer- 
son; and  the  inscription  furnished  from  Hamlet,  by 
the  Chief  Justice  of  Pennsylvania. 

A  portrait  of  the  late  Judge  Kennedy,  one  of  the 
Associates  of  the  Supreme  Court,  was  presented  to 
the  Court  by  an  artist  of  considerable  ability.  It 


JOHN    BANNISTER    GIBSON,    L.L.D.  439 

remained  in  the  court  room  for  some  years,  not  even 
graced  with  the  compliment  of  a  frame,  though  abun- 
dantly festooned  with  cob-webs.  *  A  short  time  before 
his  death,  however,  Judge  Gibson  caused  it  to  be 
refreshed  and  beautifully  framed,  and  presented  it  to 
the  only  surviving  daughter  of  the  deceased  Judge, 
in  a  manner  so  affectionate  and  delicate,  as  largely  to 
enhance  the  value  of  the  gift.  These  simple  touches 
of  nature  are,  it  is  true,  but  small  matters  in  them- 
selves ;  but  they  still  speak  for  the  heart,  and  from 
their  rarity,  become  great  in  great  men. 

If  there  be  any  virtue  that  vouches  for  all  other 
virtues,  it  is  charity ;  therefore,  to  say  of  such  a  man 
that  he  was  an  affectionate  husband,  devoted  father,  a 
tender  relative,  and  a  fast  friend,  is  to  say  no  more 
than  all  that  are  capable  of  appreciating  his  character, 
will  readily  concede.  He  was  indeed  the  very  heart  of 
his  domestic  and  family  circle.  No  circumstance  could 
weaken,  and  no  time  could  cool,  the  strength  and  fervor 
of  his  attachment ;  and  if  we  were  permitted  to  trench 
upon  his  last  moments,  we  may  well  believe  that,  next 
to  the  consolation  of  his  God,  his  chief  happiness  was 
in  dying  as  he  lived,  surrounded  by  those  he  loved. 

A  short  time  before  his  decease,  after  speaking  with 
grateful  affection  of  the  kindness  and  attentions  of  his 
brethren  of  the  bench,  and  his  friends  generally,  while 
surrounded  by  his  sorrowing  family,  he  turned  to  them 
and  said,  "I  feel  that  I  am  approaching  the  GREAT  AUDIT, 


440  THE  FORUM. 

and  I  know  that,  as  a  sinner,  I  stand  in  need  of  an  ad- 
vocate. Send  for  a  clergyman."  To  that  just  and 
merciful  Audit  he  calmly  and  faithfully  resigned  him- 
self, in  full  reliance,  not  upon  his  own  merits,  but  upon 
the  redeeming  influence  of  a  Saviour's  love. 

We  cannot  do  better,  in  taking  leave  of  our  lamented 
subject,  than  to  present  to  our  readers  a  passage  from 
the  address  of  his  successor  in  office,  Chief  Justice 
Black,  in  announcing  to  the  Supreme  Court  .the  be- 
reavement they  had  sustained  by  his  death : — 

"Judge  Gibson  was  well  appreciated  by  his  fellow-citizens;  not 
so  highly  as  he  deserved,  for  that  was  scarcely  possible;  but  admi- 
ration of  his  talents  and  respect  for  his  honesty  were  universal 
sentiments.  This  was  strikingly  exhibited  when  he  was  elected 
in  1851,  notwithstanding  his  advanced  age,  without  partisan  con- 
nections, with  no  emphatic  political  standing,  and  without  man- 
ners, habits,  or  associations  calculated  to  make  him  popular  beyond 
the  circle  that  knew  him  intimately.  With  all  these  disadvan- 
tages, it  is  said  he  narrowly  escaped  what  might  have  been  a  dan- 

i 

gerous  distinction — a  nomination  on  each  of  the  opposing  tickets. 
Abroad,  he  has  for  very  many  years  been  thought  the  great  glory 
of  his  native  State.  Doubtless,  the  whole  commonwealth  will 
mourn  his  death.  "We  all  have  good  reason  to  do  so.  The  pro- 
fession of  the  law  has  lost  the  ablest  of  its  teachers,  this  court  the 
brightest  of  its  ornaments,  and  the  people  the  steadfast  defender 
of  their  rights,  so  far  as  they  were  capable  of  being  protected  by 
judicial  authority." 


CHAPTER  IX. 

GALLERY    OF    PORTRAITS. 
THE  BAR. 

HAVING  recalled  some  of  the  lineaments  of  those 
illustrious  personages  who  adorned  the  judgment  seat  of 
the  State  and  the  Union,  and  presented  them,  through 
their  virtues,  as  models  for  the  present  generation,  let 
us  now  introduce  a  class  of  men,  belonging  to  the  same 
professional  family,  not  less  eminent  in  their  appro- 
priate department ;  and  reflecting  as  much  light  upon 
the  judges,  as  they  ever  derived  from  them.  We  refer, 
of  course,  to  the  MEMBERS  OF  THE  BAR — a  body  of  men 
who  have  done  as  much  for  the  permanency  and  glory 
of  this  republic,  as  ever  was  done  by  the  heroes  of  the 
revolution,  for  the  achievement  of  its  liberty. 

Cicero,  in  his  speech  for  Murena,  contrasts  the  qua- 
lities of  a  civih'an  with  those  of  a  soldier,  and  attempts 
to  show  that  martial  is  superior  to  legal  reputation; 

VOL.  i.— 29 


442  THE  FORUM. 

but  we  are  informed  by  equal  authority,  that,  in  a  free 
State,  the  advocates  are  always  those  who  have  most 
power  and  ascendancy.  Nor  is  this  wonderful ;  for,  in 
the  language  of  the  civil  law,  "  armed  warriors,  whose 
weapon  is  the  sword,  are  not  the  only  soldiers  of  the 
empire.  Advocates,  too,  fought  for  imperial  Rome, 
when  they  exerted  the  glorious  gift  of  eloquence  in 
supporting  her  government ;  in  defending  the  lives,  and 
fame,  and  fortunes  of  their  fellow-citizens ;  in  uphold- 
ing the  cause  of  the  poor  and  needy,  and  in  helping 
them  to  right,  who  suffered  wrong." 

"  Sallust,"  says  Judge  Breckenridge,  "  has  made  it  a 
question,  which  requires  the  greatest  talents — the  task 
of  a  general  or  that  of  a  historian?  That  may  be 
made  a  question,  yet  I  consider  the  task  of  the  histo- 
rian as  far  behind  that  of  the  ORATOR.  I  can  conceive  of 
nothing  approaching  nearer  the  power  of  an  angel  than 
the  management  of  an  argument  with  the  human  mind, 
requiring  an  intuitive  knowledge  of  the  heart,  to  dis- 
tinguish, what  can  persuade — those  resources  of  argu- 
ment which  can  lead  the  understanding — that  presence 
of  mind,  which  gives  command  of  language,  and  which, 
from  sober  reasoning,  can  ascend  to  the  regions  of  ima- 
gination, descending  and  remounting  as  occasion  may 
require . 

"  Great  generalship  requires  great  judgment,  but  not 
more  than  a  game  of  chess.  An  equal  judgment  and 
presence  of  mind  are  required  in  the  orator.  The  sur- 


THE    BAR.  443 

prise  of  sudden  emergencies  calls  for  the  talents  of  a 
commander,  but  not  less  talents  are  displayed,  where, 
in  the  course  of  a  trial,  the  evidence  takes  a  sudden 
turn,  and  the  front  of  your  defence  or  attack  must  be 
changed.  A  trial  is  the  image  of  a  field  of  battle. 
But  to  presence  of  mind  and  judgment,  the  faculty  of 
eloquence  must  be  superadded ;  that  wonderful  arrange- 
ment of  ideas  that  must  appear  almost  miraculous.  An 
able  lawyer  could  not  but  make  a  great  general,  but  it 
does  not  follow  that  an  able  general  would  make  a  great 
lawyer ;  for  the  province  is  more  extensive  and  the 
task  greater.  A  few  campaigns  will  form  a  general,  but 
the  able  lawyer  is  the  work  of  years ;  viginti  annorum 
lucubrationes." 

What  is  the  pride,  pomp,  and  circumstance  of  war, 
compared  with  the  still  and  mental  parts  of  man,  when 
they  engage  in  conflict.  When  mind  meets  mind,  then 
comes  the  tug  of  war.  It  is  the  conflict  of  the  im- 
mortal powers  of  our  nature — angel  against  angel. 

But  leaving  the  comparison  to  be  carried  out,  and  the 
result  determined  by  impartial  arbiters,  let  us  present, 
in  a  brief  and  cursory  way,  some  of  the  practical  claims 
to  victory,  which  are  preferred  in  behalf  of  the  profes- 
sion of  our  choice. 


444  THE  FORUM. 

WILLIAM   LEWIS,   L.  L.  D. 

BOKX,  1750— DIED,  AUGUST,  1819. 

IT  must  not  be  expected  that  I  should  enter  into 
the  professional  history  and  position  of  every  member 
of  the  bar,  nor  must  the  omission  to  do  so,  be  con- 
strued as  a  disparagement  to  those  not  specially  noticed. 
There  are  many  young  men,  now  commencing  their 
forensic  career,  who,  hi  all  human  probability,  will 
reach  as  high  a  round  on  the  ladder  of  professional 
fame,  as  those  who,  being  much  older,  are  of  course 
more  prominent,  and  are  therefore  designated  as  exam- 
ples of  what  talent  and  industry  may  accomplish,  and 
as  inducements  to  those  more  youthful,  to  persevere  in 
their  arduous  course,  in  order  that  they,  in  their  turn, 
may  enlighten  and  encourage  others,  by  whom  they 
may  be  followed,  in  reaching  the  lofty  pinnacle  of 
FORENSIC  fame. 

Taken  as  a  whole,  there  is  no  body  of  men  in 
the  United  States — perhaps  it  may  be  said,  in  the 
world — who  have  exhibited  more  moral  grandeur 
and  unswerving  integrity,  than  the  members  of  the 
bar.  Certainly  none  have  displayed  more  patriotism, 
public  spirit,  intelligence  and  controlling  influence,  in 
the  creation,  administration,  and  preservation  of  the 
admirable  system  of  government  in  which  they  have 
had  the  happiness  to  live.  This  remark  is  applica- 


WILLIAM    LEWIS,    L.L.D.  445 

ble,  if  not  equally  applicable,  to  almost  every  member 
of  the  legal  profession.  Their  devotion  to  the  country; 
their  energy,  their  charity,  their  liberality,  and  their 
fidelity,  if  equalled,  have  certainly  never  been  sur- 
passed, by  any  other  class  of  our  fellow  citizens.  And 
when  it  is  remembered  that  they  have  more  power, 
that  they  have  perhaps  fewer  restraints,  that  they 
embrace  a  much  wider  and  more  important  sphere  of 
action — that  to  them  is  often  confided  the  property, 
the  lives,  the  liberty,  the  character,  and  hopes  of 
thousands ;  when,  in  short,  they  stand  as  shining  and 
peculiar  lights  in  every  community,  it  is  certainly 
wonderful  that  so  few  spots  should  be  detected  upon 
the  disk  of  their  fair  fame.  While  centuries  have 
rolled  over  this  glorious  profession,  and  embraced  but 
one  Jeffries,  one  Scroggs,  and  one  Norbury;  the  pages 
of  time  are  redolent  with  the  fame  of  such  men  as 
Gascoyne,  Hale,  Somers,  Foster,  Hardwicke,  Wilmot, 
Mansfield,  Marshall,  "Washington,  Tilghman,  and  others 
of  the  same  constellation,  who  shed  an  undying  lustre 
upon  themselves,  their  country,  and  the  world. 

Among  the  first  class  of  those  who  flourished  in  Phila- 
delphia, fifty — and  more  than  fifty — years  ago,  and  who 
stood  pre-eminent  not  only  in  this  State,  but  in  the  na- 
tion, and  who  succeeded  to  our  Wilsons,  our  Shippens, 
our  Dickensons,  and  our  Hamiltons ;  all  of  whom  had 
passed  to  "that  bourne  whence  no  traveller  returns," 
though  still  gilding  the  horizon  of  life  with  the  beams  of 


446  THE  FORUM. 

their  departed  glory — were  Lewis,  Rawle,  Ingersoll, 
Tilghman,  Dallas,  Hopkinson,  Jonathan  Dickenson  Ser- 
geant, Reed  and  Bradford.  All  of  whom,  except  the 
last  three  named,  were  personally,  and  some  intimately, 
known  to  me;  that  is  to  say,  as  distinguished  men 
might  be  supposed  to  be  known,  to  a  comparative  boy. 

The  office  in  which  I  read  law,  (that  of  the  late  William 
Rawle,)  necessarily  brought  me  into  subordinate  inter- 
course with  these  eminent  men,  and  my  almost  perpetual 
attendance  at  court,  from  the  age  of  fifteen  until  their 
respective  deaths,  supplied  the  opportunity  of  noting 
their  brilliant  career,  and  of  admiring,  and  endeavoring 
humbly  to  imitate,  their  relative  talents  and  lofty  virtue. 

They  all  differed,  and  yet  they  may  be  said  to  have 
been  all  equal.  The  superior  address  of  one,  was  made 
up  to  others,  by  superior  strength;  the  more  dis- 
tinguished eloquence  of  some,  by  the  deeper  legal 
learning  of  others ;  some  figured  most  before  the  court 
in  bane;  some  were  omnipotent  with  a  jury;  some 
exhibited  greater  skill  in  land  cases,  and  some  in  mer- 
cantile, and  others  in  what  may  be  called  personal 
actions ;  and  still  others  in  the  higher  order  of  crimi- 
nal, or  crown  law;  while  some  combined  all,  though 
each  in  an  inferior  degree ;  but  by  being  second  only 
in  every  department,  ranked  with  the  first  in  the  re- 
spective branches,  of  jurisprudence. 

Lewis,  our  present  subject,  was,  for  the  most  part, 
a  self-taught  man,  but  of  great  natural  power  and  ca- 


WILLIAM-LEWIS,    L.L.D.  447 

pacity.  It  is  said,  that  lie  was  originally,  a  boy  in  an 
humble  position,  upon  a  farm  in  an  adjoining  county,  and 
that  having,  some  years  before  the  Revolutionary  war, 
driven  a  load  of  hay  into  the  city,  he  dropped  into  the 
court,  at  that  time  in  session,  and  became  so  enamoured 
with  the  arguments  of  counsel,  that  he  at  once  re- 
solved to  throw  off  his  rural  gaberdine,  and  assume  the 
toga  virilis. 

Having  thus  determined  on  his  future  career,  he 
shortly  after  entered  the  office  of  Nicholas  Wain,*  an 
eminent  barrister,  of  some  eighty  years  ago,  rather  as 
an  attendant,  than  as  a  regular  student ;  and  contin- 
ued there  for  some  four  or  five  years,  employing  those 
hours  not  occupied  by  other  service,  in  the  most  sedu- 
lous and  zealous  devotion  to  the  acquisition  of  a  know- 
ledge of  the  law. 

It  is  related  of  him,  and  no  doubt  truly,  that  as 
he  came  last  into  the  office,  and  as  his  condition 
was  comparatively  humble,  the  young  gentlemen  stu- 
dents, (many  of  whom  afterward  obtained  deserved 
distinction,)  occasionally  took  the  liberty  of  subject- 
ing him  to  menial  services,  such  as  sending  him  on 
errands,  and  deputing  him  to  do  what  properly  be- 

*  Mr.  Duponceau,  in  a  publication  of  his,  (he  having  been  a  student 
of  Mr.  Lewis,)  states,  that  "  Mr.  Lewis  read  law  with  George  Ross." 
This  has  never  been  my  understanding,  and  at  the  time  of  the  burial  of 
Mr.  Wain,  in  my  presence,  Mr.  Lewis  said  to  Mr.  Eawle,  "  I  am  going 
now,  impressed  with  mingled  gratitude  and  grief,  to  follow  my  old  MAS- 
TER, Nicholas  Wain,  to  the  narrow  house  appointed  for  all  living." 


448  THE  FORUM. 

longed  to  themselves.  On  one  of  these  occasions, 
when  he  was  directed  to  bring  some  water,  to  carry 
their  letters,  or  something  of  the  sort,  he  peremp- 
torily refused,  and  upon  the  return  of  their  precep- 
tor to  the  office,  a  formal  complaint  was  preferred 
against  the  offender.  "Well,"  said  Mr.  Wain,  "it  is 
true,  William  has  but  little  education,  and  holds  but 
an  humble  station,  but  he  has  still  some  rights,  and  it 
seems  to  me  that  the  best  mode  of  graduating  men,  is 
to  test  them  by  the  standard  of  knowledge,  and  that 
the  man  who  knows  least,  should  serve  the  others. 
Now,  I  will  examine  you  all,  and  if  William  knows 
less  than  the  rest  of  you,  he  shall  serve  you."  Ac- 
cordingly the  examination  took  place,  and  to  the  sur- 
prise of  all,  he  proved  to  be,  notwithstanding  "  all  the 
bars  against  him,"  the  best  read  student  in  the  office. 
Thus  ended  the  controversy  on  the  score  of  precedency 
and  authority. 

His  probation  passed,  it  need  hardly  be  said  that 
he  was  admitted,  after  a  most  satisfactory  examina- 
tion, on  the  fourth  of  September,  1773,  a  member  of 
the  Philadelphia  bar,  where  he  held  his  post  amongst 
the  proudest  of  his  competitors  until  his  death,  which 
occurred  on  the  fifteenth  day  of  August,  in  the  year 
1819,  in  the  sixty-ninth  year  of  his  age. 

Mr.  Lewis's  career  was  a  manifestation  of  the  aristo- 
cracy of  mind.  His  powers  of  reasoning  were  of  the 
highest  order.  During  his  whole  life,  his  energy  and 


WILLIAM   LEWIS,    L.L.D.  449 

perspicuity  were  unabated ;  and  in  his  last  speech,  like 
a  dying  taper,  he  emitted  some  of  his  brightest  flashes 
just  before  expiring.  His  manner  of  speech  was  rough 
but  most  powerful;  his  voice  somewhat  harsh,  but 
loud  and  clear,  and  clarion-like ;  it  had  but  few  modu- 
lations, but  from  its  sonorousness,  it  could  be  heard 
and  understood  at  a  great  distance. 

A  most  remarkable  matter  connected  with  Mr.  Lewis 
was,  that  he  spoke  the  English  language  with  extraor- 
dinary purity,  notwithstanding  his  early  associations 
and  habits,  which  always  exercise  so  great  an  influ- 
ence upon  the  eloquence  and  literature  of  after  life, 
had  been  such,  as  to  debar  him  of  those  advantages 
which  are  so  essential  to  advancement  in  professional 
and  public  life.  No  other  man  at  the  Philadelphia 
bar,  with  his  opportunities,  or,  rather,  with  his  want 
of  opportunities,  has  ever  equalled  him  as  a  foren- 
sic speaker,  and  yet  but  few  of  his  speeches  have 
been  reported.  Whether  he  resembled  Mr.  Pinck- 
ney,  in  refusing  publication,  on  the  ground  that  rumor 
was  better  than  print,  we  cannot  say.  Perhaps  there 
is  another  reason.  It  is  much  to  be  regretted  that 
phonography  was  unknown  during  his  time ;  and  Mr. 
Thomas  Lloyd,  an  aged  and  imperfect  stenographer, 
was  almost  the  only  reporter,  and  by  no  means  very 
accurate. 

Lewis  had  but  little  flexibility  of  feature,  and  not  much 
pathos ;  but  he  nevertheless  often  roused  the  feelings, 


450  THE  FORUM. 

and  always  commanded  undivided  attention.  His  was 
the  " aureum  flumen  orationes"  in  an  extraordinary  de- 
gree. His  wit  was  keen  but  rough,  and  in  sarcasm  he 
had  no  equal.  Conscious  of  his  own  strength,  he  used 
it  unsparingly,  and  sometimes  without  mercy,  to  those 
by  whom  he  was  opposed. 

I  remember  one  instance,  especially,  out  of  many 
that  I  have  witnessed,  which  left  a  lasting  impression 
upon  my  memory — the  last  criminal  case  in  which 
I  ever  knew  him  to  appear.  It  was  an  indictment 
found  upon  a  charge  made  by  the  Bank  of  North 
America  against  an  individual  who  had  counterfeited 
and  passed  the  notes  of  that  institution  to  a  very  large 
amount.  Mr.  Lewis  appeared  for  the  prosecution; 
and  a  very  distinguished,  thorough-paced  criminal  law- 
yer, (though  not  blessed  with  very  frank  or  prepos- 
sessing features,)  represented  the  defence.  The  evi- 
dence against  the  prisoner  was  clear,  if  not  entirely 
conclusive ;  and  his  counsel  found  it  necessary,  inas- 
much as  his  client  was  a  man  of  considerable  personal 
attraction,  and  of  a  placid  and  interesting  face,  to  rest 
a  portion  of  his  argument  upon  his  appearance.  "  Do 
you  think,  gentlemen  of  the  jury,"  said  he,  in  conclu- 
sion, having  dwelt  for  some  time  upon  the  enormity  of 
the  crime  of  forgery,  "  do  you  think  that  such  a  man 
could  be  capable  of  perpetrating  such  an  offence  ?  Can 
you  suppose  that  so  calm  and  fair  a  countenance  could 
mantle  over  so  false  and  foul  a  heart?"  Mr.  Lewis 


WILLIAM    LEWIS,    L.L.D.  45! 

then  rose  in  reply,  and  I  recollect  his  exordium  as 
though  it  had  been  uttered  yesterday : — 

"  For  twenty  years,  gentlemen  of  the  jury,"  said  he,  "  I  have 
retired  from  the  agitation  and  tumults  of  criminal  practice,  but 
for  much  more  than  twenty  years  I  have  been  the  counsel  for  the 
Bank  of  North  America.  They  took  me  by  the  hand  when  a  com- 
paratively young  man,  and  when  I  stood  in  need  of  friends ;  they 
have  applied  to  me  now,  under  the  idea  that  my  humble  services 
may  be  useful ;  and  gratitude  forbids  me  to  withhold  those  ser- 
vices. I  am  entirely  at  their  command.  Thus  far  for  myself,  now 
for  the  case.  The  prisoner's  counsel  has  placed  his  defence  mainly 
upon  his  countenance.  What  does  such  a  reliance  result  in  ?  If 
a  good  countenance  is  to  pass  for  an  acquittal,  a  bad  countenance 
must  pass  for  a  condemnation  ;  doctrine  that  you  will  at  once  ab- 
jure, and  which  sympathy  for  my  learned  antagonist  forbids  me  to 
allow,  for,  in  that  case,  he  himself  would  stand  a  wretchedly  poor 
chance." 

This  is  not  given  as  a  specimen  of  the  eloquence  of 
Mr.  Lewis,  but  as  exhibiting  his  occasional  severity,  a 
severity  in  the  exercise  of  which  the  manner  was,  if 
possible,  more  withering  and  insufferable  than  the 
matter.  His  sarcasm  or  rebuke  was  seldom  accompa- 
nied by  a  smile,  unless  it  were  a  smile  of  derision  or 
contempt.  In  this  respect,  he  differed  widely  from 
his  more  generous  and  polished  cotemporaries — Jared 
Ingersoll,  William  Rawle,  and  Alexander  James  Dallas, 
all  of  whom  were  remarkable  for  their  personal  dignity 
and  professional  courtesy  and  decorum. 

Though  he  was  most  distinguished  in  the  higher  order 


452  THE  FORUM. 

of  crown  cases,  as  they  were  then  called,  he  was  always 
at  home  at  the  bar,  or  elsewhere,  in  every  discussion  in 
which  he  engaged.  He  was  a  proficient  in  commercial 
law,  and  he  was  particularly  disposed  to  exhibit  his 
knowledge  before  those  who  professed  to  be  most  fami- 
liar with  its  principles,  usages,  and  customs.  The  late 
Robert  Wain,  a  thorough-bred  merchant,  on  hearing 
Lewis  discuss  the  commercial  relations  between  this 
country  and  Europe,  at  a  dinner  at  which  they  were 
both  guests,  observed  to  the  party  assembled,  "that  Mr. 
Lewis  seemed  as  familiar  with  commercial  affairs  as  if 
he  had  been  the  head  of  a  counting-house  all  his  life." 
"  Let  me  tell  you,  sir,"  said  Lewis,  "  that  a  competent 
lawyer  knows  everything  that  a  merchant  does,  and  a 
great  deal  more" 

Like  most  men  who  have,  by  force  of  their  own 
innate  genius,  "got  start  of  the  majestic  world,"  he 
was  somewhat  overbearing  and  opinionative,  and  in 
the  consciousness  of  his  own  great  powers,  made 
but  little  allowance  for  the  comparative  feebleness  of 
others.  In  his  victories,  he  granted  no  quarters  to  the 
vanquished.  For  some  time  after  the  admission  of 
the  elder  Dallas  to  the  bar,  he  threw  discouragements 
in  his  way,  and  at  times  manifested  so  much  vindic- 
tiveness  towards  him,  as  at  last  to  result  in  an  open 
rupture,  which  was,  however,  reconciled  by  the  inter- 
ference of  their  mutual  friends,  and  ever  afterwards 
there  remained  entire  harmony  between  them. 


WILLIAM    LEWIS,    L.L.D.  453 

For  much  of  his  life,  his  business  was  very  exten- 
sive at  the  bar ;  and  it  is  not  a  little  remarkable  that, 
although  his  early  education  was  the  most  shallow 
and  imperfect,  he  had  cultivated  such  an  acquaintance 
with  the  best  authors,  and  bestowed  so  much  attention 
upon  language,  that  he  became  one  of  the  most  classical 
speakers  at  the  bar;  and  upon  subjects  of  philology 
and  logic,  he  was  particularly  expert. 

His  eloquence  resembled  more  that  of  Demosthe- 
nes than  Cicero — it  was  a  torrent,  and  not  a  gentle 
and  translucent  stream.  It  broke  down,  instead  of 
underminuig  opposition,  and  often  terrified  rather  than 
persuaded  the  jury  into  a  verdict.  He  spoke  as  a  mas- 
ter everywhere,  and,  although  he  often  manifested  a 
want  of  judgment,  perhaps,  in  selecting  or  arranging 
his  points;  overlooking  those  that  were  strong,  and 
relying  on  those  comparatively  weak,  he  never  left 
those  weak  points  without  converting  them  into  strong 
ones,  and  leaving  the  minds  of  his  hearers  in  doubt, 
whether  his  judgment  or  their  own  was  in  error.  There 
were  some  early  instances  of  that  occasional  want  of 
perspicacity  and  judgment  to  which  I  have  referred, 
one  of  which  he  used  to  relate  himself. 

Towards  the  end  of  the  last  century,  he  was  en- 
gaged in  a  case  of  great  importance  in  point  of  prin- 
ciple, and  upon  the  result  of  which  a  vast  amount  of 
property  depended.  He  bestowed  upon  his  prepara- 
tion weeks  and  months  of  his  time.  The  argument 


454  THE  FORUM. 

was  to  be  heard  before  the  Court  in  New  York ;  and, 
as  he  was  to  be  opposed  to  Chancellor  Kent,  Am- 
brose Spencer,  and  other  eminent  members  of  that  bar, 
he  was  induced,  from  considerations  of  fame  as  much 
as  money,  to  leave  no  effort  unemployed. 

"  '  "Well/  said  he,  '  I  thought  no  man  could  be  better  prepared, 
and  no  man  could  have  a  better  cause.  My  points  and  my  argu- 
ment, as  I  had  arranged  them,  appeared  to  be  unanswerable ;  and, 
assured  of  success,  on  the  day  before  that  fixed  for  the  hearing,  I 
arrived  in  New  York.  Next  morning,  at  eleven  o'clock,  the  argu- 
ment was  to  commence. 

"About  an  hour  before  the  opening  of  the  court,  I  was  called  upon 
by  Alexander  Hamilton,  who  informed  me  that  Mr.  Kent  was  in- 
disposed, and  Mr.  Spencer  absent,  and  in  this  emergency  he  (Mr. 
Hamilton)  had  just  been  retained,  but  that  he  had  little  knowledge 
of  the  case  and  no  means  of  obtaining  it.  ( In  these  circumstances/ 
said  the  great  little  man,  'would  you  have  any  objection  to  giving 
me  a  sketch  or  foreshadowing  of  your  views,  in  order  that  I  may 
turn  the  matter  over  in  my  mind,  and  at  least  know  something  of 
what  I  am  compelled  to  discuss.'  '  By  all  means/  said  I,  consider- 
ing my  claims  infallible,  and  telling  him  so;  and  I  proceeded 
briefly  to  state  the  history  of  the  case,  the  points  of  my  argument, 
and  the  authorities  by  which  they  were  sustained.  He  thanked 
me,  left  me,  and  in  an  hour  afterwards  we  met  again  in  court, 
and  the  argument  at  once  proceeded.  I  spoke  for  several  hours. 
The  judges  seemed  to  be  convinced,  and  I  was  perfectly  satisfied 
with  the  cause  and  myself.  During  the  argument,  Mr.  Hamilton 
took  no  notes,  sometimes  fixed  his  penetrating  eye  upon  me,  and 
sometimes  walked  the  chamber,  apparently  deeply  interested,  but 
exhibiting  no  anxiety.  When  I  had  finished,  he  immediately 
took  the  floor,  and  commenced  his  reply.  What  was  my  amaze- 


WILLIAM    LEWIS,    L.L.D.  455 

ment  when,  in  his  first  sentence,  he  acknowledged  all  my  points, 
and  denied  none  of  my  authorities,  but  assumed  a  position  which 
had  never  entered  my  mind ;  to  the  support  of  which,  directing  all 
his  great  powers,  in  one  fourth  the  time  employed  by  me,  he  not 
only  satisfied  the  court,  but  convinced  me  that  I  was  utterly  wrong. 
In  short,  after  all  my  toil,  and  time,  and  confidence,  I  was  beaten — 
shamefully  beaten." 

With  all  his  eminence,  Mr.  Lewis  was  a  careless  man, 
negligent  of  his  papers,  negligent  of  his  dress,  indiffer- 
ent to  the  comforts  and  cleanliness  of  his  office,  min- 
gling very  little  in  social  intercourse,  and  usually,  in 
the  close  of  his  career,  bestowing  but  scanty  attention 
upon  the  preparation  of  his  cases.  Indeed,  he  never  was 
an  industrious  and  systematic  man ;  if  he  had  been,  (said 
Mr.  Rawle,)  few  lawyers  could  have  compared  with  him. 

Some  years  before  his  death  he  retired  to  his  coun- 
try seat,  near  the  falls  of  Schuylkill,  and  seldom  vis- 
ited the  city.  There  he  died,  on  the  fifteenth  of  Au- 
gust, 1819,  and  was  buried  in  the  burial  ground  of 
the  Friends'  Society,  of  which  society  he  was  a  pro- 
fessed member. 

Mr.  Lewis  was  a  man  of  six  feet  high.  In  his 
advanced  age,  he  had  a  slight  stoop  in  the  shoulders, 
which,  however,  he  lost  in  the  animation  of  discussion, 
when  he  seemed  to  stretch  his  frame  to  its  utmost 
limit.*  He  used  but  one  gesture,  which  was  that  of 

*  There  is  an  excellent,  though  not  highly  finished,  portrait  of  him,  in 
oil  colors,  in  the  Law  Library,  painted  in  early  life  by  Mr.  John  Nagle, 
while  a  pupil  of  the  late  Gilbert  Stewart.  It  is  a  copy  of  a  portrait  by 


456  THE  FORUM. 

raising  his  right  arm  almost  perpendicularly,  and  a& 
though  in  the  act  of  throwing  a  tomahawk,  and  some- 
times bringing  it  down  with  great  violence  upon  the 
desk.  His  appearance,  when  in  the  full  excitement 
of  a  speech,  was  such  as  not  only  to  enlist  the  court 
and  jury,  but  the  entire  audience.  It  stirred  men's 
blood,  and  caused  the  hair  to  stand  on  end. 

I  remember,  in  very  early  life,  to  have  heard  his  cotem- 
poraries  and  compeers  say,  that,  upon  one  occasion,  when 
he  was  engaged  in  a  very  important  forensic  struggle, 
during  the  time  when  Philadelphia  was  the  seat  of  the 
federal  government,  a  deputation  of  Indians,  then  upon 
a  visit  to  President  Washington,  was  introduced  into 
tlte  court  room,  with  their  interpreter,  and  while  there, 
listened  with  great  apparent  attention  to  the  argument 
of  Mr.  Lewis.  My  informant,  stepping  up  to  the  in- 
terpreter, requested  him  to  ask  his  savage  companions 
what  they  thought  of  the  speaker,  to  which  the  imme- 
diate reply  was,  "He  is  a  great  warrior"  This  serves 
to  convey  some  idea  of  his  action  and  energy  in  debate, 
from  the  effect  produced  upon  these  children  of  the 
forest ;  but  it  had  very  little  foundation  in  point  of 
truth,  for,  perhaps,  courage  was  the  least  remarkable 
of  the  qualities  of  this  great  man. 

Mr.  Lewis  was  a  steadfast  friend  and  a  generous 

Stewart,  and  gave  an  early  but  bright  promise  of  Nagle's  present  emi- 
nence. This  portrait  was  presented  to  the  Law  Library  Company,  by 
the  late  Joseph  Head,  Esq. 


WILLIAM    LEWIS,    L.L.D.  457 

enemy.  He  was  faithful  to  his  clients  when  convinced 
they  were  right,  but  he  did  not  consider  himself  bound 
to  them,  "right  or  wrong." 

As  an  instance  of  this,  having  been  engaged  by  an 
influential  citizen  to  defend  him  in  a  case  of  consider- 
able magnitude,  in  the  course  of  the  trial  it  became 
apparent  that  the  client  had  grossly  misrepresented 
the  case,  and  had  in  fact  been  guilty  of  a  gross  fraud ; 
whereupon  Lewis  threw  up  his  brief,  and  when  called 
upon  to  speak  for  the  defendant,  he  promptly  declined. 
"Will  you  not  speak  ?"  said  the  client.  "No,  sir ;"  said 
the  counsel.  "What,  then,"  said  the  suitor,  "have  I 
paid'you  for?"  "You  have  paid  me,"  replied  the  indig- 
nant advocate,  "that  you  might  have  justice  done, 
and  justice  will  now  be  done,  without  my  further  inter- 
ference." 

With  all  his  masterly  powers,  toward  the  latter  part 
of  his  career  his  carelessness  and  negligence  increased. 
I  remember  to  have  heard  one  of  the  most  distinguished 
of  his  friends  say,  that  it  seemed  almost  impossible  for 
Mr.  Lewis  ever  to  find  a  paper  that  had  been  left  with 
him,  and  that,  too,  even  at  a  period  when  he  was  engaged 
in  every  important  cause,  and  his  voice  daily  heard  in 
every  court.  From  my  knowledge  of  his  office,  I  think 
that  readily  accounted  for.  His  table  and  desk  gene- 
rally exhibited  a  huge  and  confused  mass  of  docu-. 
ments,  all  apparently  thrown  heterogeneously  together, 
and  so  covered  with  dust,  and  redolent  of  tobacco 

VOL.  L— 30 


458  THE  FORUM. 

smoke,  that  it  might  be  thought  their  repose  had  not 
been  disturbed  for  months.  The  other  portions  of  the 
office  showed  equal  indifference  to  cleanliness  and  order, 
so  much  so  as  to  induce  me,  upon  returning  from  one  of 
my  calls,  to  remark,  in  a  playful  way,  that  no  one 
could  visit  Mr.  Lewis's  office  without  committing  a  lar- 
ceny; as  he  not  only  brought  away  his  own  coat,  but 
a  coat  of  dust  besides. 

The  condition  of  his  office,  as  thus  described,  how- 
ever, was  not  so  remarkable  then  as  it  would  be  now, 
It  was,  to  be  sure,  much  worse  than  most  of  those  of 
men  of  his  rank,  but  none  of  the  offices  of  that  day 
were — on  the  score  of  cleanliness,  order  and  comfort — 
to  be  compared  to  those  of  the  last  quarter  of  a  cen- 
tury :  papers,  of  course,  especially  those  of  a  remote 
date,  were  often  lost  or  mislaid,  and  woe  to  the  un- 
happy student,  whose  fate  it  might  be  to  search  for 
them.  He  was  doomed  to  days  of  wearisome  exami- 
nation, mounting  to  the  top  of  an  overgrown  and 
overloaded  book-case,  upon  a  precarious  ladder,  and 
shrouded  as  it  were,  in  the  accumulated  dust  of  twenty 
or  thirty  years,  seeking  what  he  had  never  seen,  and 
what,  as  it  often  happened,  he  was  likely  never  to  see; 
and  further,  what  perhaps,  if  found,  would  have  been 
a  poor  equivalent  for  his  annoyance  and  sufferings 
encountered  in  making  the  discovery. 

Lawyers'  offices,  from  the  year  1820  until  1850,  were 
palaces,  embracing  a  suite  of  rooms  appropriately  and 


WILLIAM    LEWIS,    L.L.D.  459 

magnificently  furnished,  books  and  papers  in  perfect 
order,  and  where  the  effluvia  of  a  segar  or  the  annoy- 
ance of  tobacco  juice,  or  the  temptation  even  of  a  spit- 
toon, was  rarely,  if  ever  found.  In  the  increase  of 
the  profession,  however,  from  two  hundred  to  five  hun- 
dred members,  no  inconsiderable  change  has  taken 
place  within  the  last  few  years.  I  am  no  advocate  for 
a  palace,  and  I  am  decidedly  opposed  to  a  hovel,  but 
there  is  a  happy  medium  which  might  be  adopted,  that 
would  be  creditable  to  the  counsel  and  comfortable  to 
the  client — next  to  doing  things  well,  is  to  do  them 
agreeably. 

Having  thus  given  a  general  account  of  Mr.  Lewis's 
professional  course  and  character,  the  difficulties  which 
he  encountered  and  subdued,  his  personal  habits  and 
mode  of  speech,  it  may  reasonably  be  expected  that 
some  specimens  of  his  oratory  should  be  supplied  to 
the  reader,  confirmatory  of  the  lofty  opinion  enter- 
tained and  expressed  of  him  by  all  those  who  knew 
him  in  his  palmy  days,  and  traced  his  luminous  course 
to  "  the  house  appointed  for  all  living." 

In  complying  with  this  reasonable  expectation,  we 
are  aware  that  a  speech  in  type  is  a  very  different 
matter  from  a  speech  delivered.  If  Patrick  Henry's 
fame  depended  upon  the  report  of  his  speeches,  instead 
of  the  effects  which  they  produced,  we  should  be  at  a 
loss  to  conceive  how  he  could  have  acquired  such 
deathless  renown. 


460  THE  FORUM. 

This  difference  is  attributable  to  various  causes,  com- 
bining to  produce  dramatic  effect.  The  court — the 
jury — the  issue — the  surrounding  populace ;  the  inte- 
rest of  the  contending  parties  and  their  respective 
friends — the  presence  of  the  bar — the  natural  excite- 
ment of  the  occasion — all  tend  to  impart  animation 
and  vigor  to  a  speech,  and  to  confirm  the  sentiment  of 
Cicero^  that  "  no  man  is  an  orator  without  a  multitude." 
Still,  without  any  of  these  advantages,  and  without 
even  a  statement  of  the  issue  under  discussion,  which 
our  space  will  not  allow,  we  may,  by  a  few  excerpts 
from  the  forensic  efforts  of  this  great  advocate,  furnish 
some  faint  idea  of  the  grasp  of  his  intellect,  and  the 
power  of  his  eloquence.  The  attempts  will  prove, 
to  be  sure,  comparatively  tame  and  uninteresting. 
Like  a  Chinese  portrait,  preserving,  with  great  exact- 
ness the  features  and  proportions  of  the  picture,  but 
utterly  destitute  of  that  warmth,  and  grace,  and  life, 
and  soul,  which  constitute  its  true  resemblance  and 
chief  value.  Action,  which  is  said  to  be  the  essence 
of  oratory,  is  utterly  wanting.  The  impassioned  de- 
clamations, the  varied  tones  of  the  voice,  the  fixed  and 
penetrating  eye — the  spirit  that  displays  itself  "  from 
every  joint  and  motive  of  the  body" — are  neither  to 
be  appreciated  nor  imagined.  To  be  understood — to 
be  felt — they  must  be  seen  and  heard.  Still,  as  we 
cannot  revive  the  dead,  their  past  works  must  speak 
for  them. 


WILLIAM   LEWIS,    L.L.D.  461 

It  is  said  that  upon  a  nobleman,  inquiring  of  Charles 
James  Fox  whether  he  had  read  Sheridan's  great 
speech  at  Liverpool  hustings,  he  said,  "  No,  how  does 
it  read  ?"  "Admirably,"  was  the  reply.  "  Then,"  ob- 
served the  great  statesman,  "it  was  not  worth  a  d — n," 

Every  one  familiar  with  the  efforts  of  true  oratory, 
can  appreciate  the  truth  of  this  rough  remark.  It  is  also 
said  that  Mr.  Pinckney,  who,  for  eloquence,  had  few,  if 
any,  superiors,  considered  that  a  speech  spoken  and  a 
speech  written,  (as  we  have  elsewhere  said,)  were  such 
different  things,  that  he  always,  when  he  could,  with- 
held from  publication  his  oratorical  efforts,  knowing 
the  insufficiency  of  type  to  convey  any  just  idea  of 
the  real  value  of  professional  or  parliamentary  elocu- 
tion, and  prefering  rather  to  trust  to  rumor  and  tradi- 
tion, than  to  a  stenographer  or  a  printer.  Neverthe- 
less, it  may  be  expected,  after  what  has  been  stated 
of  Mr.  Lewis's  great  forensic  powers,  that  this  hum- 
ble memento  of  a  most  distinguished  man  should*  be 
attended,  at  least,  by  some  brief  abstracts  from  his 
professional  arguments.  There  is  but  one  case  that 
we  shall  take  leave  to  refer  to :  that  of  his  defence 
of  Chief  Justice  M'Kean  before  the  Legislature  of 
Pennsylvania,  upon  an  attempt  to  impeach  him,  aris- 
ing out  of  his  judgment  in  the  case  of  Respublica 
v.  Oswald,  already  adverted  to  in  the  memoir  of  the 
Chief  Justice.  In  excuse  for  the  meagre  materials 
left  to  us,  after  a  lapse  of  scarcely  more  than  half 


462  THE  FORUM. 

a  century,  it  may  be  observed,  that  phonography  at 
that  time  was  unknown,  and  short-hand  writing  was 
so  little  practised,  and  confined  to  so  few  persons,  and 
those  so  incompetent,  that  it  must  have  given  an  advo- 
cate more  pain  in  reading  his  reported  speeches,  than 
he  derived  pleasure,  or  profit  in  delivering  them.  Still, 
however,  with  all  these  qualifications  and  allowances, 
some  notion  may  be  formed  from  the  speeches  that  are 
extant,  of  the  mind,  at  least,  if  not  of  the  action  of  the 
speaker,  and  with  this  explanation,  we  present  this 
imperfect  specimen. 

The  substance  of  Mr.  Lewis's  speech,  as  a  member 
of  the  Legislature  of  Pennsylvania,  in  September, 
1778,  upon  the  memorial  of  Eleazer  Oswald,  calling 
for  the  impeachment  of  Chief  Justice  M'Kean  and  his 
associates,  for  imprisoning  the  said  Oswald  under  an 
attachment,  and  extending  the  imprisonment  beyond 
the  limit  of  the  sentence,  1  Dallas,  330  : — 

"  Mr.  Lewis  began  with  commenting  upon  the  origin,  nature, 
and  purposes  of  a  state  of  society,  which,  he  said,  was  principally 
formed  to  protect  the  rights  of  individuals ;  and,  of  those  rights, 
he  pathetically  described  the  right  of  enjoying  a  good  name,  to  be 
the  most  important  and  most  precious.  He  observed,  that  the  in- 
juries which  could  be  done  to  any  other  property,  might  be  re- 
paired ;  but  reputation  was  not  only  the  most  valuable,  but,  like- 
wise, the  most  delicate  of  human  possessions.  It  was  the  most 
difficult  to  acquire;  when  acquired,  it  was  the  most  difficult  to 
preserve ;  and  when  lost,  it  was  never  to  be  regained.  If,  there- 

•  V 

fore,  it  was  not  as  much  protected  as  any  other  right,  the  aged 


WILLIAM    LEWIS,    L.L.D.  453 

matron  and  the  youthful  virgin,  (since  purity  of  character  is  the 
palladium  of  female  happiness,)  while  they  are  fettered  by  the 
habits  and  expectations  of  society,  are  exposed  and  abandoned  by 
its  laws  and  institutions.  But  this  evil  is  effectually  removed, 
when  we  consider  the  bill  of  rights  as  precluding  any  attempt  to 
restrain  the  press,  and  not  as  authorizing  insidious  falsehoods  and 
anonymous  abuse.  The  right  of  publication,  like  every  other 
right,  has  its  natural  and  necessary  boundary ;  for,  though  the  law 
allows  a  man  the  free  use  of  his  arm,  or  the  possession  of  a  weapon, 
yet  it  does  not  authorize  him  to  plunge  a  dagger  in  the  breast  of 
an  inoffensive  neighbor. 

"Mr.  Lewis  then  proceeded  to  consider  the  immediate  subject 
of  complaint.  He  stated  it  to  be  two-fold :  1st,  That  the  Chief 
Justice  had  protracted  Mr.  Oswald's  imprisonment  beyond  the 
legal  expiration  of  his  sentence ;  and,  2dly,  That  the  imprisonment 
itself  was  unconstitutional,  illegal,  and  tyrannical. 

"  On  the  first  point,  he  observed,  that  it  was,  indeed,  a  serious 
charge,  if  Mr.  Oswald  could  prove  that  a  single  justice  had  arbi- 
trarily altered,  or  counteracted,  the  record  of  the  court,  in  order  to 
accomplish  the  imprisonment  of  a  citizen.  But  how  was  the  charge 
supported  ?  The  opinion  given  by  the  Chief  Justice  to  the  jailer, 
was  not  given  in  his  judicial  capacity;  and  though  a  paper,  said  to 
be  a  transcript  from  the  records,  was  shown  to  him,  yet  it  was  not 
subscribed  by  the  prothonotary,  nor  was  it  under  the  seal  of  the 
court.  This,  therefore,  could  not  be  a  sufficient  document  to  set 
aside  his  recollection  of  the  sentence ;  it  was  no  legal  evidence  of 
the  fact  which  it  stated,  Gilb.  Law  of  Ev.  23,  and  the  little  time 
that  elapsed  between  the  opinion  given  to  the  jailer,  and  the  direc- 
tions for  Mr.  Oswald's  release,  we  may  fairly  presume  to  have  been 
consumed  in  examining  the  records. 

"  On  the  second  point,  he  engaged  in  a  long  and  ingenious  dis- 
quisition upon  the  nature  of  what  is  called  the  liberty  of  the  press  ; 
he  represented  the  shackles  which  had  been  imposed  upon  it  during 


464  THE  FORUM. 

the  arbitrary  periods  of  the  English  government;  and  thence  de- 
duced the  wisdom  and  propriety  of  the  precaution,  which  declares 
in  the  bill  of  rights,  that  the  press  shall  not  be  subject  to  restraint. 
He  gave  an  historical  narrative  of  the  British  acts  of  parliament 
and  proclamations,  which  debarred  every  man  of  the  right  of  pub- 
lication, without  a  previous  license  obtained  from  officers,  esta- 
blished by  the  government  to  inspect  and  pronounce  upon  every 
literary  performance;  but  observed,  that  this  oppression  (which 
was  intended  to  keep  the  people  in  a  slavish  ignorance  of  the  con- 
duct of  their  rulers)  expired  in  the  year  1694,  when  the  dawn  of 
true  freedom  rose  upon  that  nation.  9  vol.  Stat.  at  large,  p.  190. 
Since  that  memorable  period,  the  liberty  of  the  press  has  stood  on 
a  firm  and  rational  basis.  On  the  one  hand,  it  is  not  subject  to 
the  tyranny  of  previous  restraints ;  and,  on  the  other,  it  affords  no 
sanction  to  ribaldry  and  slander ; — so  true  it  is,  that  to  censure  the 
licentiousness,  is  to  maintain  the  liberty  of  the  press.  4  Black. 
Com.  150,  151,  152.  Here,  then,  is  to  be  discerned  the  genuine 
meaning  of  this  section  in  the  bill  of  rights,  which  an  opposite 
construction  would  prostitute  to  the  most  ignoble  purposes.  Every 
man  may  publish  what  he  pleases ;  but,  it  is  at  his  peril,  if  he 
publishes  anything  which  violates  the  rights  of  another,  or  inter- 
rupts the  peace  and  order  of  society; — as  every  man  may  keep 
poisons  in  his  closet,  but  who  will  assert  that  he  may  vend  them 
to  the  public  for  cordials  ?  If,  indeed,  this  section  of  the  bill  of 
rights  had  not  circumscribed  the  authority  of  the  legislature,  this 
house,  being  a  single  branch,  might,  in  a  despotic  paroxysm,  re- 
vive all  the  odious  restraints  which  disgraced  the  early  annals  of 
the  British  government.  Hence  arises  the  great  fundamental  ad- 
vantage of  the  provision,  which  the  authors  of  the  constitution 
have  wisely  interwoven  with  our  political  system ;  not,  it  appears, 
to  tolerate  and  indulge  the  passions  and  animosities  of  individuals, 
but  effectually  to  protect  the  citizens  from  the  encroachments  of 
men  in  power. 


WILLIAM    LEWIS,    L.L.D.  455 

"  It  has  been  asserted,  however,  that  Mr.  Oswald's  address  was 
of  a  harmless  texture ;  that  it  was  no  abuse  of  the  right  of  publi- 
cation, to  which,  as  a  citizen,  he  was  entitled ;  and,  in  short,  that 
in  considering  it  as  a  contempt  of  the  court,  the  judges  have  acted 
tyrannically,  illegally,  and  unconstitutionally.  But  let  us  divest 
the  subject  of  these  high-sounding  epithets,  and  the  reverse  of  this 
assertion  will  be  evident  to  every  candid  and  unprejudiced  mind  : 
for,  such  publications  are  certainly  calculated  to  draw  the  adminis- 
tration of  justice  from  the  proper  tribunals;  and  in  their  place  to 
substitute  newspaper  altercations,  in  which  the  most  skilful  writer 
will  generally  prevail  against  all  the  merits  of  the  case.  But  it  is 
moreover  the  duty  of  the  judges  to  protect  suitors,  not  only  from 
personal  violence,  but  from  insidious  attempts  to  undermine  their 
claims  to  law  and  justice.  Hence,  Lord  Chancellor  Hardwicke, 
(who  was  an  ornament  to  his  country,  and  not  one  of  whose  de- 
crees, during  the  period  of  twenty  years  which  he  sat  as  chancellor, 
was  ever  reversed,)  has  described  three  sorts  of  contempts — 1st, 
Scandalizing  the  court  itself;  2dly,  Abusing  parties  who  are  con- 
cerned in  causes  there;  and  3dly,  Prejudicing  mankind  against 
persons,  before  the  cause  is  heard.  2  Atk.  471.  And  in  2  Vesey, 
502,  though  no  reflection  was  cast  upon  the  court,  and  the  offender 
pleaded  ignorance  of  the  law,  yet,  it  is  expressly  laid  down,  that 
ignorance  was  not  an  excuse,  and  that  the  reason  for  punishing 
was,  not  only  for  the  sake  of  the  party  injured,  but  also  for  the 
sake  of  the  public  proceedings  in  the  court,  to  hinder  such  adver- 
tisements which  tend  to  prepossess  people  as  to  those  proceedings. 
A  similar  doctrine  is  maintained  in  1  P.  Williams,  675.  And  4 
Black.  Com.  282,  pronounces  the  printing,  even  true  accounts  of 
a  cause  depending  in  judgment,  to  be  a  contempt  of  the  court. 

"  But  it  has  been  said,  that  this  cause  was  not  depending  in 
court,  when  the  offence  was  committed,  because  the  address  was 
publislied  on  the  first  of  July,  and  the  writ  against  Mr.  Oswald 
was  not  returnable  until  the  succeeding  day.  This  idea  originates 


466  THE  FORUM. 

in  an  ignorance  of  the  constitution  of  our  courts,  which,  in  this 
respect,  differs  essentially  from  the  constitution  of  the  courts  of 
England.  There,  all  original  process  issues  out  of  the  Court  of 
Chancery,  and  is  made  returnable  into  the  King's  Bench  or  Com- 
mon Pleas ;  so  that,  in  truth,  the  writ  gives  the  jurisdiction,  and, 
of  course,  until  it  is  returned,  the  court  cannot  take  cognizance  of 
the  cause.  Here,  however,  the  original  process  issues  out  of  the 
very  court  into  which  it  is  returnable,  and  is  usually  tested  the  last 
day  of  the  preceding  term.  It  is  absurd,  therefore,  to  say  that  the 
jurisdiction  of  a  court,  by  whose  authority  a  suit  is  actually  insti- 
tuted, can  be  thus  suspended  and  parcelled  out. 

"  With  respect  to  the  address  itself,  Mr.  Lewis  analyzed  its  of- 
fensive parts,  in  order  to  show  that  it  treated  the  judges  with  in- 
decent opprobrium;  that,  in  some  respects,  it  was  inconsistent 
with  truth,  and  that,  in  its  general  operation,  it  w<*s  intended,  and 
could  not  fail,  to  excite  resentment  against  Browne,  the  plaintiff, 
and  compassion  for  Oswald,  the  defendant,  in  the  cause. 

"  He  now  proceeded  to  consider  the  mode  of  punishment,  which 
formed  a  material  part  of  Mr.  Oswald's  complaint ;  and,  in  support 
of  its  legality,  referred,  generally,  to  the  authorities  which  he  had 
already  cited.  He  observed  that  much  declamation  had  been 
wasted  upon  this  topic;  and  that  the  proceeding  by  attachment 
had  been  vehemently  reprobated  as  the  creature  of  the  Court  of 
Star  Chamber.  Though  that  court  might  have  employed  the  pro- 
cess of  attachment  (of  which,  however,  he  did  not  recollect  an  in- 
stance,) yet,  he  insisted,  that  it  was  idle  and  absurd  to  consider  it 
as  the  creature  of  a  jurisdiction,  whose  own  existence  was  of  a 
much  later  date,  than  that  of  the  subject  to  which  we  are  told  it 
gave  birth.  To  prove  this,  he  stated  that  the  Court  of  Star  Cham- 
ber was  not  instituted  until  the  year  1368 ;  that  Magna  Charta 
was  confirmed,  at  least,  one  hundred  and  thirteen  years  before  that 
time ;  and,  as  all  the  authorities  concur  in  declaring  that  the  pro- 
cess by  attachment  is  as  ancient  as  the  laws  themselves,  and  that 


WILLIAM    LEWIS,    L.L.D. 

it  was  confirmed  by  Magna  Charta,  its  origin  is  consequently  long 
antecedent  to  that  of  the  Court  of  Star  Chamber.  4  Black.  Com. 
280,  281,  282,  283,  284,  285. 

"  But,  he  argued,  with  great  strength  and  perspicuity,  that  the 
process  of  attachment,  which  in  practice  was  multiplied  into  innu- 
merable uses,  was  essential  to  the  administration  of  justice;  and 
that  if  the  exercise  of  this  power  was  suppressed,  the  courts  them- 
selves might  as  well  be  annihilated.  He  represented,  that  it  was 
an  established  principle  in  law,  that  one  court  could  not  punish  a 
contempt  committed  against  another;  then,  continued  he,  how  shall 
the  Common  Pleas  repel  an  injury  of  that  nature  ?  It  is  not  vested 
with  any  criminal  jurisdiction;  it  cannot  empanel  a  grand  jury, 
nor  try  an  indictment ;  the  only  remedy  therefore  which  the  case 
can  admit,  is  by  an  attachment.  He  applied  the  same  reasoning 
to  the  Supreme  Court;  and  with  respect  to  the  Orphans'  Court, 
the  Court  of  Admiralty,  and  the  Courts  of  the  registers  of  wills, 
&c.,  he  observed,  that  their  proceedings,  according  to  the  civil 
law,  were  totally  independent  of  juries;  and  that,  consequently,  if 
they  were  deprived  of  the  process  of  attachment,  it  was  in  vain  for 
them  to  decide  and  to  decree,  for  they  would  then  be  without  any 
means  to  enforce  obedience  to  their  decisions  and  decrees.  Nay, 
he  added,  that,  without  this  power,  the  legislature  itself  would  be 
exposed  to  wanton  insult  and  interruption ;  and  that  letters,  such 
as  he  had  received,  menacing  his  existence  for  his  conduct  on  the 
present  occasion,  might  be  written  and  avowed  with  absolute  im- 
punity. He  then  enumerated  many  instances  in  which  gross  in- 
justice would  take  place,  but  for  the  intervention  of  this  summary 
proceeding.  Where  a  sheriff  refuses,  or  neglects,  to  return  a  writ ; 
or  to  pay  money  which  he  had  received  upon  an  execution ;  where 
an  inferior  court  refuses  to  transmit  a  record ;  a  witness,  or  jury- 
man, to  attend  or  to  be  sworn;  and  where  a  defendant  in  eject- 
ment refuses  to  pay  costs,  after  a  nonsuit,  for  want  of  a  confession 
of  lease  entry  and  ouster; — in  all  these  and  many  other  cases  he 


468  THE    FORUM. 

demonstrated,  that  the  great,  efficient  remedy,  was  by  an  attach- 
ment to  be  issued  against  the  delinquent. 

"  In  tracing  the  antiquity  of  the  process  by  attachment,  he  re- 
marked, that,  it  was  admitted  to  be  a  part  of  the  common  law  by 
the  most  authoritative  writers ;  and  that  the  common  law  was  a 
compound  of  the  Danish,  Saxon,  Norman,  Pict,  and  civil  law.  1 
Black.  Com.  63.  As,  therefore,  the  attachment  is  derived  from 
the  civil  law,  and  the  civil  law  was  introduced  into  England  by 
the  Romans,  early  in  the  first  century,  he  thought  it  impracticable 
at  this  day  to  ascertain  its  source ;  but  insisted  that  enough  ap- 
peared to  prove  it  to  be  of  immemorial  usage,  and  a  part  of  the 
law  of  the  land. 

"  He  then  adverted  to  the  leading  objection  made  by  the  advo- 
cates for  Mr.  Oswald,  that,  however  the  process  of  attachment 
might  be  legal  in  England,  it  was  not  so  in  Pennsylvania.  From 
a  decision  in  the  time  of  Judge  Kinsey,  he  showed,  that,  before 
the  Revolution,  an  attachment  had  issued  for  a  contempt,  and  that 
the  party  had,  in  fact,  answered  certain  interrogatories  filed  by 
order  of  the  court ;  so  that,  it  only  remained  to  inquire,  whether 
any  alteration  had  been  introduced  by  the  constitution  of  the  State. 
In  the  twenty-fourth  section  of  that  instrument,  it  is  declared,  that, 
"  the  Supreme  Court,  and  the  several  Courts  of  Common  Pleas  of 
this  Commonwealth,  shall,  besides  the  powers  usually  exercised  by 
such  courts,  have  the  powers  of  a  Court  of  chancery,  so  far  as  re- 
lates, &c."  Now,  as  it  appears  by  the  case  which  occurred  while 
Mr.  Kinsey  was  chief  justice,  that  the  power  of  issuing  attach- 
ments was  usually  exercised  by  the  Supreme  Court,  so  far  from 
altering  the  law,  this  is  a  direct  confirmation  of  the  jurisdiction  of 
the  court;  for,  the  greater  naturally  includes  the  less;  and  if  the 
court  is  vested  with  all  its  former  powers,  by  what  possible  con- 
struction can  we  deprive  it  of  this  ?  But  it  is  answered,  that  a 
section  in  the  bill  of  rights  provides,  that,  "  In  all  prosecutions  for 
criminal  offences  the  trial  shall  be  by  jury,  &c."  True;  but  the 


WILLIAM    LEWIS,    L.L.D.  459 

whole  system  must  be  taken  together;  or,  if  we  examine  a  particu- 
lar part,  it  must  he  with  a  recollection  of  the  immediate  subject  to 
which  that  part  relates.  For,  otherwise,  this  very  section  might 
as  properly  be  brought  to  prove,  that  the  judges  could  not  be  im- 
peached (since  surely  that  is  not  a  trial  by  jury)  as  that  they  have 
not  the  power  of  issuing  attachments.  All  cases  proper  for  a  trial 
by  jury,  the  bill  of  rights  clearly  meant  to  refer  to  that  tribunal ; 
but  can  anything  more  explicitly  demonstrate  that  the  framers  of 
the  constitution  were  aware  of  some  cases,  which  required  another 
mode  of  proceeding,  than  their  declaration,  that  '  Trials  shall  be 
by  jury  as  heretofore  ?'  Who  will  assert  that  contempts  were  ever 
so  tried  ?  who  will  hazard  an  opinion,  that  it  is  possible  so  to  try 
them? 

"  But  does  not  the  constitution  of  Pennsylvania  further  distin- 
guish between  the  laws  of  the  land  and  the  judgment  of  our  peers} 
furnishing  a  striking  alternative,  by  the  disjunctive  particle  or? 
This  very  sentiment,  expressed  in  the  same  words,  appears  in  the 
Magna  Charta  of  England ;  and  yet  Blackstone  unequivocally  in- 
forms us,  that  the  process  of  attachment  was  confirmed  by  that 
celebrated  instrument.  In  the  fourteenth  chapter  of  Magna  Charta 
it  is  also  said,  that  l  no  amercement  shall  be  assessed  but  by  lawful 
men  of  the  vicinage;'  and  who,  that  is  at  all  acquainted  with  the 
law,  or  with  the  reason  of  the  law,  can  think  it  possible,  in  that 
case,  to  pursue  the  generality  of  the  expression  ? 

"  From  these  analogous  principles,  therefore,  and  the  construc- 
tion of  ages,  we  may  safely  argue  on  the  present  occasion.  But 
the  wild  and  hypothetical  interpretations  which  some  men  have 
offered,  would  inevitably  involve  us  in  a  labyrinth  of  error,  and 
eventually  endanger  that  liberty  which  they  profess,  and  every 
honest  citizen  must  wish  to  preserve." 


CHAPTER  X. 

JARED    INGERSOLL,   L.L.D. 

BORN,  NOV.,  1750  — DIED,  OCT.,  1822. 

JARED  INGERSOLL  was  born  in  New  Haven,  Connect- 
icut, on  the  seventh  of  November,  1750,  and  was 
admitted  to  practice  on  the  twenty-sixth  of  April, 
1773,  having  read  law  with  Joseph  Reed,  the  grand- 
father of  "W.  B.  Reed,*  the  present  able  district  attor- 

*  Mr.  William  B.  Reed,  and  his  lamented  brother,  Professor  Henry 
Reed,  united  in  the  preparation  and  publication  of  the  memoirs  of  their 
paternal  grandfather ;  a  work  which  reflects  great  credit  upon  their 
affection,  and  scarcely  less  upon  their  industry  and  fine  literary  taste ; 
a  taste  possessed  in  an  eminent  degree  by  their  ancestor,  as  every 
one  will  admit,  even  if  there  remained  no  other  evidence  of  it,  than 
his  celebrated  letter  to  General  Gage,  in  reply  to  his  communication 
addressed  to  George  Washington,  Esq.,  which,  we  presume,  is  familiar 
to  all.  If  every  descendant  among  us  manifested  the  same  reverence 
for  ancestry,  or  the  same  grateful  family  regard,  the  history  of  this 
country,  which,  at  last,  is  but  the  history  of  its  men,  would  at  once, 
be  a  subject  of  personal  gratification  and  patriotic  pride.  But,  sad 
to  say,  prospect,  not  retrospect,  is  the  prevailing  error  of  the  times ;  and 


JARED    INGERSOLL,   L.  L.  D. 

ney  for  the  county  of  Philadelphia.  Joseph  Reed  was 
a  celebrated  lawyer,  and  at  one  period,  president  of  the 
executive  council. 

Mr.  Ingersoll,  the  next  year  after  admission,  made 
a  voyage  to  Europe,  and  remained  abroad  for  nearly 
five  years,  and  upon  his  return,  was,  in  April,  1779, 
admitted  to  practice  in  the  Supreme  Court  of  Penn- 
sylvania. 

Jared  Ingersoll,  not  less  eminent  than  Lewis,  was, 
in  every  possible  way,  differently  constituted.  His  great 
merit  was  that  of  persuasion,  with  nothing  boisterous — 
nothing  clamorous — nothing  violent  or  declamatory  in  his 
mode  of  discussion.  Calmness,  mildness,  and  modera- 
tion, were  his  distinguishing  and  characteristic  traits. 

"  When  he  spoke,  what  tender  words  he  used — 
So  softly,  that  like  flakes  of  feathered  snow, 
They  melted  as  they  fell." 

He  glided  into  the  affections,  and  disregarding  the 
passions,  he  captivated,  by  the  strength  and  simpli- 
city of  his  appeals,  the  reason  and  the  judgment  of 
his  hearers.  Never  excited,  never  disconcerted,  he 
pursued  the  even  and  resistless  tenor  of  his  way,  and 
success  almost  invariably  crowned  his  efforts.  His  edu- 
cation was  far  superior  to  that  of  his  great  rival,  and  in 

you  would  hardly  suppose  that,  at  the  present  day,  any  man  ever  had  an 
ancestor.  Yet,  certainly,  of  all  branches  of  history,  biography  is  the  most 
interesting  and  instructive,  and  we  are  told  by  high  authority,  it  is  the 
"  proper  study  of  man.1'1 


472  THE  FORUM. 

addition  to  this,  he  had  enjoyed  the  benefit  of  foreign 
travel,  and  the  best  society  of  France  and  England. 
He  was  a  student  of  the  Inner  Temple,  and,  after  ter- 
minating his  studies  there,  had  returned  to  his  native 
land,  a  refined  gentleman  and  an  accomplished  lawyer. 
Improved   by  the  virtues  of  Europe,  and  uncon- 
taminated  by  its  vices,  yet  Mr.  Ingersoll  never  pre- 
sumed  upon   his    superior   advantages.      He   was   a 
man  of  great  delicacy,  and  of  course  great  modesty. 
The  most  extraordinary  feature  of  his  disposition  was, 
that,  unlike  Mr.  Dallas  and  most  of  his  other  com- 
peers, he  avoided  participation  in  almost  everything 
that  did  not,  in  some  way,  appertain  to  his  profession. 
Eminently  fitted  to  shine  in  every  walk  of  life,  his 
ruling  attachment   seemed  to  be  entirely  centred  in 
the  LAW.     To  this,  he  looked  through  the  medium  of 
everything  else,  and  he  contemplated  everything  else 
through  the  lens  of  the  law.     His  ambition  was  ren- 
dered perfectly  subordinate  to  his  love  for  his  own 
peculiar  science.     Yet  he  spoke  well  upon  any  topic, 
and  was  at  home  wherever  he  was  found.     His  state- 
liness,  was  simplicity ;  his  reserve,  modesty.     He  was 
unlike  Oliver  Ellsworth,  Chief  Justice  of  the  Supreme 
Court  of  the  United  States,  who,  though  a  great  law- 
yer, upon  being  presented  at  the  British  Court,  seemed 
somewhat  at  a  loss  as  to  the  conventional  rules  of 
society,  and  was  observed  stalking  through  the  marble 
halls  of  the  palace,  without  entering  into  conversation 


JARED    INGERSOLL,    L.L.D.  473  ' 

with  any  one,  until  Lord  Lyndhurst,  inquiring  who 
was  the  tall  gentleman  in  black,  and  being  informed, 
begged  the  honor  of  an  introduction ;  and  with  admi- 
rable adroitness  at  once  inquired  how  they  regulated 
descents  in  the  United  States.  Here,  of  course,  the 
Chief  Justice  was  at  home,  and  entered  upon  an  expla- 
nation of  the  subject,  which  no  doubt  interested  his 
lordship,  and  certainly  relieved  his  colloquist  from 
much  embarrassment. 

The  habits  of  industry  acquired  by  Mr.  Ingersoll 
attroad,  remained  to  him  during  the  course  of  his  entire 
life.  How  often  have  we  seen  him,  in  advanced  age, 
drawing  nearer  and  nearer  to  his  office  window,  as 
the  sun  declined,  engaged  in  the  close  perusal  of  his 
books,  as  if  unwilling  to  lose  a  moment  that  could  be 
profitably  employed.  His  whole  mind  seemed  to  be 
devoted  to  his  profession,  but  his  heart  was  not  the 
less  generous  and  humane.  Just,  in  all  his  dealings 
with  his  fellow  men,  he  nevertheless  was  forgiving  of 
their  frailties,  and  gentle  towards  their  faults.  His 
intercourse  with  the  bar  displayed  remarkable  ame- 
nity and  urbanity,  and  he  not  unfrequently,  converted 
those  to  whom  he  was  opposed,  into  friends  and 
clients.  In  all  the  discussions  in  which  we  have  ever 
known  him  to  be  engaged,  and  they  were  many,  he 
was  never  known  to  indulge  in  any  harshness  or  aspe- 
rity that  could  give  undue  pain  to  others,  or  prove  a 
matter  of  regret  to  himself.  In  the  famous  case  of 

VOL.  i. — 31 


474  THE  FORUM. 

John  Evans,  in  which  some  of  the  most  eminent  members 
of  the  bar  were  concerned — Condy,  Levy,  and  Ingersoll, 
for  the  plaintiff;  Lewis,  Rawle,  and  Hallowell,  for  defend- 
ant— although  the  parties  were  much  excited  and  very 
sensitive,  it  was  generally  acknowledged  by  both  sides, 
that  the  speech  of  Mr.  Ingersoll  was  the  ablest,  most  ap- 
propriate, and  most  discreet.  Indeed,  his  manner  and 
matter  were  always  unexceptionable.  He  never  lost 
sight  of  the  interest  of  his  clients.  He  was  equally 
regardful  of  the  rights  of  others,  and  his  own  self- 
esteem.  His  position  at  the  Philadelphia  bar  resem- 
bled that  of  Romilly  at  the  British  bar — he  was  both 
feared  and  beloved.  His  style  was  for  the  greater 
part  colloquial;  and  in  an  argument  to  a  jury,  he 
almost  made  himself  one  of  them,  and  drew  them  im- 
perceptibly to  his  opinions  and  conclusions.  Others 
may  have  seen  him  in  a  state  of  excitement,  but 
we  never  did.  Excitement  would  have  been  unfa- 
vorable to  the  tone  of  such  a  mind.  As  obstruction, 
in  a  smooth  and  transparent  stream  reflecting  all  the 
beautiful  scenery  by  which  it  is  surrounded,  and  smil- 
ing in  the  rays  of  the  sun,  would  render  the  crystal 
waters  turbid,  and  disturb  their  imagery;  so  would 
excitement,  in  thoughts  like  his,  have  disturbed  their 
serene  and  tranquil  course. 

We  have  said  the  failing  of  Mr.  Lewis  was  to  rest 
too  often  on  the  weak  points  of  his  case.  The  peculi- 
arity of  Mr.  Ingersoll  was,  that  where  he  discovered 


JARED    INGERSOLL,    L.  L.  D.  475 

a  weak  point  in  his  adversary,  instead  of  overlooking 
or  treating  it  with  indifference,  he  assailed  it  with  all 
his  force,  and  never  left  it  until  it  was  utterly  demo- 
lished, and  his  adversaries'  cause  with  it.  He  could 
seize  upon  a  weak  position,  and  avoid  the  effects  of  a 
strong  one,  better  than  any  man  at  the  bar.  He  was, 
of  course,  remarkable  for  his  success ;  and  during  a  long 
session  of  the  Circuit  Court  of  the  United  States,  he 
gained  every  cause,  but  one,  in  which  he  was  engaged. 

This  faculty  was  always  manifested  by  him  in  an 
extraordinary  degree,  but  so  far  as  we  remember,  it 
was  most  remarkable  upon  the  trial  of  John  Evans 
v.  Jane  Pierce  and  Others,  in  1810 ;  and  in  the  case 
of  the  Commonwealth  v.  Richard  Smith,  in  1816. 
In  the  first  of  these,  the  ground  of  action  was  not 
only  unpopular,  but  feeble  in  itself,  and  the  verdict 
obtained  by  the  plaintiff  merely  nominal;  but  it  is 
not  going  too  far  to  say,  that  no  other  member  of  the 
bar  than  Mr.  Ingersoll,  could  have  prevented  a  verdict 
for  the  defendant.  His  whole  speech  consisted  of  the 
exposure  of  the  fallacy  of  the  remarks  of  the  opposite 
counsel.  It  is  unnecessary  that  passages  of  the  speech 
should  be  specially  referred  to.  It  is  published,  and 
although  far  inferior  to  the  speech  delivered,  abun- 
dantly supports  the  opinion  thus  expressed. 

The  speech  that  probably  gives  the  best  notion  of 
the  tone  and  quality  of  Mr.  Ingersoll's  forensic  efforts, 
is  that  delivered  by  him  in  the  Senate  of  the  United 


476  THE  FORUM. 

States,  upon  the  impeachment  of  William  Blount,  a 
senator  of  the  United  States,  for  high  crimes  and  mis- 
demeanors. 

This  impeachment  was  founded  upon  a  message  from 
the  President,  in  1797,  to  the  Senate  and  House  of 
Representatives,  alleging  that  the  situation  of  the 
country  was  critical,  and  furnishing  documents  in  sup- 
port of  that  allegation.  One  of  these  documents  was 
a  letter,  dated  April  21st,  1797,  from  Mr.  Blount, 
obviously  designed  to  produce  a  disruption  between 
the  United  States  and  the  Indian  tribes. 

Upon  investigation  of  these  documents,  Mr.  Sit- 
greave,  of  the  House  of  Representatives,  reported  the 
following  resolution : 

"Resolved,  That  William  Blount,  a  senator  of  the 
United  States,  from  Tennessee,  be  impeached  of  high 
crimes  and  misdemeanors." 

Mr.  Sitgreave  was  then  appointed  to  go  to  the  Senate 
and  impeach  Blount ;  and  also  demand  that  he  be  se- 
questered from  his  seat  in  the  Senate,  which  was 
accordingly  done.  Blount  was  then  taken  into  cus- 
tody, and  held  to  a  recognizance  of  twenty  thousand 
dollars  himself,  with  two  sureties,  each  in  fifteen 
thousand  dollars.  In  addition  to  this,  Blount  was 
expelled  from  the  Senate — his  bail  surrendered  him, 
but  he  was  afterwards  admitted  to  reduced  bail. 

On  the  seventeenth  of  December,  1798,  the  Senate 
formed  itself  into  a  Court  of  Impeachment. 


JARED    INGERSOLL,    L.L.D.  477 

On  the  twenty-fourth  of  December,  Mr.  A.  J.  Dal- 
las and  Mr.  Jared  Ingersoll  appeared  for  defendant, 
and  by  permission  entered  their  pleas. 

1.  Denying  the  charge. 

2.  Denying  that  if  charge  were  true,  the  Senate  has 
jurisdiction ;  and  alleging  that  the  jurisdiction  belongs 
to  the  courts  of  common  law. 

It  was  in  support  of  these  grounds  of  defence  that 
Mr.  Ingersoll,  in  answer  to  Mr.  Bayard,  made  a  most 
able  argument,  a  few  extracts  from  which,  as  affording 
some  faint  notion  of  his  style,  we  now  take  leave  to 
present.  It  was  delivered  on  the  4th  of  January, 
1799. 

"  Sir,  when  I  turn,  as  directed,  to  the  books  of  the  law,  to  know 
the  nature  of  the  proceeding  by  impeachment,  what  do  I  find  of  it 
there  ?  Little  good,  and  much  ill.  And  while  the  energy  of  the 
English  language,  copious  as  it  is,  is  exhausted  in  eulogiums  on 
trials  by  juries  in  criminal  cases,  I  read  of  none  on  proceedings  by 
impeachment.  The  best  English  writers  content  themselves  with 
stating,  coldly,  that  the  most  proper  and  the  most  usual  instances 
of  proceeding  by  impeachment,  are  against  the  ministers  and  other 
great  officers  of  state,  who,  surrounded  by  the  imposing  splendor 
of  royal  favor,  are  too  great  for  the  grasp  of  law  administered  by 
courts  and  juries ;  and  from  the  special  nature  of  the  alleged  crimes 
sometimes  a  knowledge  is  requisite,  not  always  possessed  by  juries. 
Sir,  I  find  in  those  books,  that  the  trial  by  jury,  in  criminal  cases, 
is  the  palladium  which  has  preserved  the  liberties  of  the  British 
nation,  during  the  shocks  of  conquests  from  abroad,  the  convulsions 
of  civil  war  within,  and  the  more  dangerous  period  of  modern 
luxury. 


478  THB  FORUM. 

"  My  impression  or  my  sentiments  upon  this  subject  are  not 
entitled,  as  such,  to  the  notice  of  this  honorable  body ;  but  when 
I  cite,  in  their  support,  such  names  as  Hale,  Hume,  Blackstone, 
and  Wooddeson ;  when  I  can  add  the  expressions  of  the  first  great 
charter  of  American  freedom,  the  Declaration  of  Independence,  in 
which  I  find  it  assigned,  as  one  reason  for  the  dismemberment  of 
the  empire,  that  the  king  had  given  his  assent  to  laws  for  depriving 
us  in  many  cases  of  the  benefits  of  trial  by  jury.  I  trust  what  I  have 
observed  in  this  particular  will  not  be  stigmatized  as  declamation. 

"  I  read  in  Magna  Charta,  that  no  man  shall  be  condemned  but 
by  the  lawful  judgment  of  his  peers,  or  the  law  of  the  land.  What 
was  this  law  of  the  land  ?  What  other  mode  of  proceeding  in 
criminal  causes  was  then  in  practice,  except  trial  by  jury.  Hale, 
eminently  great  and  equally  good,  expresses  it  to  be  by  the  com- 
mon law  of  the  land.  A  learned  English  historian  explains  the 
expression  as  alluding  to  those  methods  of  trial  which  originated 
in  the  presumptuous  abuse  of  revelation  in  the  ages  of  dark  super- 
stition. The  trial  by  ordeal,  or  fire  or  water;  the  corsned  or  morsel 
of  execration,  and  the  trial  by  battle.  I  add,  informations  originally 
reserved  in  the  great  plan  of  the  English  constitution,  and  attach- 
ments for  contempts.  Was  the  proceeding  by  impeachment  within 
the  exception  ?  Magna  Charta  bears  date  A.  D.  1225.  The  first 
instance  of  impeachment  mentioned  in  the  juridical  History  of 
England,  as  far  as  I  can  find,  was,  on  the  third  of  February,  1388, 
or  at  least  1327,  in  the  reign  of  Edward  the  Third,  more  than  one 
hundred  years  after  Magna  Charta ;  unless,  indeed,  it  be  the  pro- 
ceedings against  the  two  Dispensers,  in  1321,  which  were  so  irre- 
gular, that  it  was  made  void  in  Parliament  the  following  year. 

"It  is  sufficient,  says  the  celebrated  Montesquieu,  as  quoted 
by  Justice  Blackstone,  to  render  any  government  arbitrary,  that 
the  laws  on  the  subject  of  treason  are  indefinite ;  for  this  reason, 
the  statute  of  twenty-fifth  Edward  III.,  attempted  to  render  the 
law  on  this  subject  definite  and  clear.  The  House  of  Commons, 


JARED    INGERSOLL,    L.L.D.  479 

in  order  to  destroy  an  object  of  their  vengeance,  attempted  to  in- 
troduce a  new  species  of  treason,  constructive ;  and  to  support  the 
charge  by  a  new  species  of  evidence,  called  accumulative.  Can 
any  man  read  without  the  strongest  sensibility  the  defence  made 
on  that  occasion  ?  Penalties  are  imposed  previous  to  the  promul- 
gation of  the  laws,  and  the  defendant  is  tried  by  maxims,  unheard 
of  until  the  moment  of  the  prosecution.  Who  can  recollect,  with- 
out horror,  the  cruel  manner  in  which  the  defendant  was  treated 
on  his  trial,  as  described  by  Wooddeson,  vol.  ii.  pages  608,  609. 
Personal  animosity  and  violence,  and  the  implacability  of  deter- 
mined enemies,  marked  their  proceedings,  until  it  ended  in  a  bill 
of  attainder,  which  a  subsequent  parliament  repealed,  erased,  and 
defaced.  Let  me  add,  in  the  words  of  the  same  author,  Wooddeson, 
vol.  ii.  page  620,  from  this,  or  a  more  particular  survey  of  the 
proceedings  on  impeachment,  we  shall  find  occasion  to  observe, 
that  though  great  is  the  utility  of  the  public  ends,  which  they  are 
designed  to  answer,  they  have  been  too  often  misguided  by  per- 
sonal and  factious  animosities,  and  productive  of  alarming  dissen- 
tions  between  two  branches  of  the  legislature.  The  incompetency 
of  a  court  and  jury  sometimes  to  decide,  from  the  greatness  of  the 
offender  and  the  nature  of  the  crime,  is  urged  against  me.  I  do 
not  believe  that  at  present  any  offender  is  too  great  for  the  grasp 
of  law  as  administered  by  our  courts  and  juries;  but  what  may 
happen  in  our  eventful  history  I  know  not;  and,  therefore,  I  con- 
fess it  to  be  proper  that  a  provision  of  this  kind  should  find  a  place 
in  the  constitution,  as  far  as  respects  the  executive  and  its  officers ; 
but,  further  than  this,  I  contend  there  is  not  any  necessity  that  it 
should  be  carried,  and  that  such  extension  of  this  proceeding  would 
be  infinitely  dangerous  to  the  citizens.  Might  not  the  influence, 
the  weight,  and  the  protracted  nature  of  such  proceedings  by  im- 
peachment, endanger  even  innocence  ?  Have  we  not  seen,  in  our 
own  days,  an  impeachment  continue  seven  years  ?  Had  the  de- 
fendant possessed  no  other  means  of  defence  than  innocence,  the 


480  THE  FORUM. 

prosecution  would  have  occasioned  his  ruin  in  one-seventh  of  the 
time. 

"  Wherever  a  proceeding  in  a  criminal  matter  deviates  from  the 
course  of  the  common  law  by  jury,  whether  such  proceeding  be  in- 
introduced  by  statute  or  by  a  constitution,  such  statute  and  such 
constitution  ought  to  be  strictly  construed.  If  any  one  thinks  I 
have  dwelt  too  long  on  this  prefatory  matter,  let  him  read  the  en- 
comium on  trial  by  jury,  by  Mr.  Justice  Blackstone;  let  him  read 
Hume's  History  of  England,  vol.  i.  page  98,  and  Blackstone's 
Com.,  vol.  iii.  page  349,  and  Blackstone's  Com.,  vol.  iv.  pages  349, 
414 ;  he  will  not  find  trials  by  jury  spoken  of  in  those  qualifying 
terms  which  Wooddeson  applies  to  the  trial  by  impeachment. 

"  Thus  far  I  urge  the  argument,  and  no  farther. .  The  constitu- 
tional power  of  impeachment  is  to  be  strictly  construed.  If  the 
question  that  now  arises  be  involved  in  doubts,  those  doubts  ought 
to  be  decisive  in  favor  of  the  accused.  The  power  is  to  be  ex- 
tended only  so  far  as  is  expressed,  or  to  be  clearly  inferred,  by  a 
fair  and  clear,  if  not  necessary,  implication  from  what  is  expressed. 

"I  acknowledge  that  the  trial  by  jury,  like  every  human  insti- 
tution, is  liable  to  abuse ;  but  I  contend  that  it  is  less  so,  infinitely 
less  so,  than  trial  by  impeachment.  The  demon  of  faction  most 
frequently  extends  his  sceptre  over  numerous  bodies  of  men. 

"  I  conceive  that  it  was  this  retrospective  view  of  the  history  of 
impeachment  that  was  in  the  mind  of  the  convention  who  framed 
the  Constitution  of  the  United  States.  Hence,  the  salutary  re- 
striction, as  I  understand  it,  not  as  contended  by  our  opponents, 
an  introduction  upon  the  indefinite  ground  on  which  it  is  placed 
in  England;  but  in  a  restricted  manner,  in  a  narrow  channel,  to 
supersede  the  trial  by  jury  only  in  certain  cases.  The  malignant 
suggestions  of  envenomed  jealousy  have  no  access  to  my  breast. 
I  do  not  impute  improper  motives  anywhere.  I  ask  only  a  rea- 
sonable construction,  to  ascertain  its  extent.  I  thought  proper  to 
consider  its  nature  as  exemplified  in  the  juridical  history  of  that 


JARED    INGERSOLL,    L.L.D.  4g]_ 

country  from  whose  system  of  jurisprudence  we  have  adopted  it. 
Let  us  obtain  an  exposition  of  our  great  charter,  according  to  its 
true  and  genuine  meaning.  It  is  surely  our  duty  to  examine  and 
to  understand,  as  well  as  to  revere  and  to  defend  the  Constitution. 
Previous  to  the  formation  of  the  present  Constitution  of  the  United 
States,  this  subject  had  been  under  consideration  in  forming  state 
constitutions ;  and  in  New  York,  whose  constitution  was  made  in 
1777 ;  and  in  Massachusetts,  whose  constitution  was  made  in  1780, 
the  practice  of  proceeding  by  impeachment  was  in  these,  and  every 
instance  where  the  power  was  allowed,  restricted  to  the  executive 
and  its  officers,  for  malconduct  in  office.  A  strong  indication  of 
the  sentiment  that  was  generally  entertained  upon  the  subject; 
and  such  was  the  situation  of  the.  private  citizen,  that  he  could  not 
be  condemned  of  any  criminal  charge,  but  by  the  unanimous  con- 
sent of  a  jury  of  his  neighborhood." 

The  speeches  of  Mr.  Lewis  may  be  resembled  to  a 
cataract,  foaming  and  sparkling;  those  of  Mr.  Inger- 
soll,  to  a  serene,  quiet,  and  glassy  lake.  Neither 
of  them  can  be  described — they  must  be  heard,  in 
order  to  be  comprehended.  In  Commonwealth  v. 
Smith,  which  was  the  last  criminal  cause  argued  by 
Mr.  Ingersoll,  and  but  a  few  years  before  his  death, 
he  manifested  the  same  skill  and  power  that  he  had 
shown  in  his  earlier  days.  Indeed  it  was  to  be  observed, 
in  regard  to  all  the  men  of  his  class,  that  they  came  in 
at  the  death  almost  as  fresh  and  vigorous  as  when  they 
commenced  the  chase.  To  show  that  good  springs  from 
evil,  it  is  hardly  to  be  doubted  that  this  result  was 
mainly  attributable  to  the  vicissitudes  of  fortune,  expe- 


482  THE    FORUM. 

rieneed  in  the  latter  part  of  their  lives.  Ordinary  men 
might  have  been  dismayed,  but  not  so  with  them — the 
harder  their  fall,  the  higher  their  rebound ;  and  it  is 
rendered  very  questionable,  whether  these  reverses 
did  not  largely  contribute  to  the  expansion  and  devel- 
opment of  their  great  intellectual  powers,  and  the  esta- 
blishment of  an  unrivalled  and  undying  fame. 

Men,  who  have  laid  up  for  themselves  "treasure 
on  earth,"  have  nothing  here  to  labor  for,  and  they 
become  inert  and  supine,  the  mind  slumbers  among 
its  hordes,  until  it  sleeps  the  sleep  of  death ;  whereas, 
the  same  tribulation  that  mostly  gives  rise  to  energy, 
is  calculated  to  renew  and  preserve  it,  by  compel- 
ling those  exertions,  which  we  should  otherwise  re- 
fuse to  make.  Adversity  is  a  better  school  than 
prosperity,  and  teaches  more  lasting  and  useful  les- 
sons ;  it  humanizes  the  heart,  instead  of  hardening 
it,  and  it  imparts  to  the  mind  that  pathos,  sympa- 
thy, and  moral  influence,  which  form  the  better  part 
of  an  orator  and  a  man.  Such  men  as  Lewis,  In- 
gersoll,  Rawle,  Tilghman  and  Dallas,  never  valued 
themselves  from  their  estates,  nor  were  they  so  val- 
ued by  others.  Their  glory  consisted  in  direct  men- 
tal endowments  from  their  creator,  cultivated,  im- 
proved, and  enlarged  by  a  life  of  persevering  indus- 
try and  unblemished  integrity.  This  remark  is  equally 
applicable  to  them  all ;  in  short,  it  was  in  the  combi- 
nation of  their  great  qualities,  that  while  they  stood  a 


JARED    INGERSOLL,    L.L.D.  433 

constellation  together,  they  reflected  mutual  and  reci- 
procal light. 

Although  Mr.  Ingersoll's  sight  was  defective,  he 
generally  took  copious  notes,  but  rarely  attempted  to 
read  them  afterwards.  They  were  taken,  probably,  for 
the  purpose  of  impressing  the  facts  more  deeply  on 
his  mind.  His  favorite  mode  of  preparation  for  an  ar- 
gument was  to  walk  his  room  and  soliloquise,  by  which 
he  succeeded  in  working  himself  into  just  so  much 
warmth  as  was  required  by  the  occasion. 

For  my  own  part,  although  far  from  presenting  my- 
self as  an  example  to  be  followed,  I  would  not  give  a 
walk  of  twenty  feet  back  and  forth,  in  the  way  of  pre- 
paration, to  reply  to  the  argument  of  an  antagonist, 
for  the  most  elaborate  notes  that  could  be  taken. 
This,  no  doubt,  is  to  be  attributed  to  a  long-continued 
habit,  originating  during  school-boy  days,  in  coiming 
over  and  preparing  recitations. 

This  effect  of  habit  on  the  mind,  is  referred  to  by 
Sir  Walter  Scott  in  his  life.  He  says,  that  during  his 
early  instruction,  there  was  a  boy  in  his  class  who, 
though  not  remarkable  for  brilliancy  or  study,  always 
contrived  to  be  at  the  head,  in  defiance  of  every  effort 
on  the  part  of  others  to  supplant  him.  This  was  hard 
to  understand,  says  Scott,  and  I  watched  him  closely, 
in  order  to  discover  the  secret,  when  I  found  that,  while 
he  was  reciting,  he  always  played  with  a  particular  but- 
ton upon  his  coat.  So,  just  before  the  next  lesson  came 


484  THE  FORUM. 

on,  I  cut  off  that  "magic  button."  With  the  very 
first  question  that  was  asked,  he  sought  and  fumbled 
for  it,  and  not  finding  it,  became  confused,  unable  to 
answer,  and  lost  his  place. 

The  loss  of  the  case  of  Clough,  for  the  murder  of  Mrs. 
Hamilton,  was  always  ascribed,  by  the  senior  counsel 
for  the  defence,  to  his  having  been  so  hemmed  in,  from 
the  first  to  the  last  of  the  trial,  by  an  immense  con- 
course of  spectators,  as  actually  to  forbid  his  enjoy- 
ment of  the  power  of  locomotion. 

This  peripatetic  mode  of  preparing  for  a  speech  was 
not  at  that  time  peculiar  to  Mr.  Ingersoll.  It  was 
adopted  by  Lewis,  Hopkinson,  Condy,  and  many  other 
of  the  prominent  members  of  the  bar. 

In  the  year  1811,  he  was  appointed  by  Governor 
Snyder  the  Attorney-General  of  the  State  of  Pennsyl- 
vania, wholly  without  solicitation,  and  apparently  with- 
out desire.  The  circumstances  attendant  upon  the 
appointment  were  somewhat  extraordinary,  and  per- 
haps never  known  even  to  him.  Governor  Snyder 
was  the  head  of  the  democratic  party,  and  was  an  in- 
flexible democrat  himself;  but,  at  the  same  time,  he 
was  a  man  of  great  political  discretion  and  prudence. 
It  so  happened,  that  when  this  appointment  became 
necessary,  there  was  not  a  lawyer  belonging  to  his 
party  competent  or  eligible  for  the  post.  Mr.  Dallas, 
at  that  period,  being  the  District  Attorney  of  the 
United  States.  This  was  a  dilemma  which  was  not 


JARED    INGERSOLL,    L.L.D.  435 

easily  escaped  or  removed.  To  appoint  an  incom- 
petent man  was  irreconcilable  with  the  Governor's 
views,  and  injurious  to  the  party  and  the  State  admi- 
nistration; and  to  appoint  a  federalist  would  be,  at 
least,  a  humiliating  concession,  and  attended  by  great 
party  excitement  and  acrimony.  What  was  to  be 
done?  The  Governor  consulted  his  political  friends 
in  this  city,  and,  after  much  deliberation,  it  was 
resolved,  as  Mr.  Ingersoll,  though  a  decided  fede- 
ralist, was  not  an  active,  noisy  politician,  (and  had 
previously,  indeed,  been  appointed  Attorney-General 
by  Governor  M'Kean,  and  held  that  situation  from 
1791  to  1800,)  that  the  commission  should  be  ten- 
dered to  him.  But  there  was  another  difficulty. 
Might  he  not  refuse  it  ?  and  thereby  throw  reproach 
upon  the  appointing  power.  Party  spirit  was  at  a 
lofty  pitch  at  the  time,  and  the  parties  jealously 
watched  each  other,  and  were  not  over  scrupulous  in 
securing  every  possible  advantage  that  might  be  re- 
spectively afforded.  In  this  condition  of  things,  the 
Governor  authorized  his  confidential  advisers  in  Phila- 
delphia to  ascertain,  if  practicable,  what  might  be  Mr. 
Ingersoll's  disposition  upon  this  subject,  and,  if  favor- 
able, to  fill  up  his  commission  at  once,  which  they  al- 
ready held  in  blank  for  that  purpose.  Still,  political 
asperity  was  such,  and  the  dividing  line  was  so  broad, 
that  little  or  no  friendly  intercourse  prevailed  between 
opposite  sides ;  and,  in  addition  to  this,  the  agents  of 


486  THE  FORUM. 

Governor  Snyder  scarcely  knew  Mr.  Ingersoll,  except 
by  reputation,  and,  therefore,  were  at  a  loss  as  to  the 
mode  of  approaching  him  and  ascertaining  his  senti- 
ments, without  compromising  their  own  position,  as 
well  as  that  of  the  State  Executive.  This  object, 
however,  was  finally  accomplished  through  the  agency 
of  the  late  Doctor  Hudson,  who  contrived  to  bring 
about  a  meeting,  at  his  house,  between  a  friend  and 
distant  connection  of  Mr.  Ingersoll  and  the  Governor's 
agents.  This  meeting  resulted  in  Mr.  IngersolTs  inti- 
mating unsuspectingly,  and  in  private  intercourse,  that 
although  he  did  not  desire,  and  would  not  seek  the 
office,  still,  if  properly  offered,  it  would  not  be  refused. 
The  appointment  was  immediately  filled  up  in  his 
name.  This  situation  was  held  by  him  from  1811 
until  the  year  1816,  when  he  resigned;  and  a  more 
honorable,  capable,  impartial  and  distinguished  Attor- 
ney-General never  graced  the  annals  of  this  or  any 
other  State. 

In  the  year  1820,  he  was  appointed,  by  Governor 
Wolf,  President  Judge  of  the  District  Court  for  the 
city  and  county  of  Philadelphia,  which  position  he 
occupied  until  his  death,  which  occurred  shortly  after- 
wards. At  the  time  of  his  appointment  he  was  seventy 
years  of  age — ten  years  beyond  the  judicial  limit  in 
New  York.  The  District  Court,  at  that  period,  scarcely 
afforded  an  opportunity  for  the  display  of  his  great 
powers ;  and  perhaps  it  may  be  doubted,  after  having 


JARED    INGERSOLL,    L.L.D. 

held  a  high  position  as  an  advocate  for  half  a  century, 
whether  he  could  so  change  the  habits  of  his  thoughts 
and  practice,  as  to  equal  on  the  bench  his  great  emi- 
nence at  the  bar.  He  was,  it  is  true,  an  able  lawyer, 
but  his  extraordinary  powers  of  discussion  before  a 
jury,  were  such  as  to  throw  any  mere  legal  attainments 
or  judicial  position,  into  the  shade.  Still,  his  mind  re- 
tained its  clearness  until  the  last,  and  no  one  could  fail  to 
perceive  what  must  have  been  his  meridian  glory,  from 
the  mild  lustre  and  mellowed  beauty  of  his  declining 
sun. 

He  died  on  the  thirty-first  of  October,  1822,  at  the 
age  of  seventy-three  years,  leaving  to  the  country  the 
rich  legacy  of  an  illustrious  and  untarnished  name, 
and  succeeded  in  the  profession  by  his  sons,  who  not 
only  kept  his  laurels  green,  but  magnified  them,  by 
adding  to  and  interweaving  with  them,  their  own;  like 
the  pious  -<3Eneas,  at  once  deriving  and  imparting  fame 
from  filial  gratitude  and  devotion.  The  name  of  the 
Ingersolls,  as  great  lawyers  and  most  accomplished 
scholars  and  advocates,  will  be  as  enduring  as  the  re- 
collection of  the  bar  itself,  of  which  they  were  always 
amongst  the  brightest  and  most  distinguished  models. 
How  attractive  was  the  scene  that  exhibited  the  father 
and  sons  opposed  or  united  in  a  case,  and  blending  all 
the  charms  of  filial  and  parental  affection,  with  a  scru- 
pulous and  rigid  fulfilment  of  professional  duty. 

Mr.  Ingersoll  was  slender  in  his  form,  about  five 


488  THE  FORUM. 

feet  ten  inches  high,  and  as  straight  as  an  arrow,  up  to 
the  latest  period  of  his  life.     His  face  was  interesting; 
his  features  small,  but  expressive ;  his  forehead  full, 
but  not  high,  and  his  eye  manifesting  at  the  same  time 
great  refinement  and  intelligence.     He  was  somewhat 
near-sighted,  and  slightly  bald — the  result  of  hard 
study,  as  well  as  years.     His  dress  was  neat,  and,  as 
was  the  fashion  of  the  day,  consisted  of  a  drab  body 
coat  and  small  clothes,  with  silk  stockings,  and  shoes 
with  buckles.     Brown,  drab,  and  gray,  were  the  pre- 
vailing colors  worn  by  the  members  of  the  bar  until 
the  year  1815.    We  do  not  remember,  among  the  elder 
lawyers,  any  eminent  men  at  the  bar,  of  that  time, 
who  ever  adopted  any  other  color  of  dress.     This  mat- 
ter is  unimportant,  but  it  may  still  aid  the  fancy  in 
summoning  into  view  the  appearance  of  those  great 
men  whom  we  profess  imperfectly  to  depict.    I  cannot 
describe  them  by  a  comparison  with  any  men  of  more 
modern  date.     They  were  themselves  alone.     In  man- 
ner, in  matter,  in  dress,  in  intercourse,  in  social  and 
professional  harmony — in  short,  if  we  may  use  the 
word,  in  unity  as  a  body — they  were  unlike  anything 
that  the  Philadelphia  bar,  or  any  other,  so  far  as  we 
know,  ever  presented.    No  jealousies — few  antipathies 
— ever  marred  their  most  delightful  companionship. 
During  the  circuits,  which  then  prevailed,  they  were 
thrown  much  and  closely  together ;  and  it  was  refresh- 
ing and  delightful  to  hear  them  speak,  as  they  were  all 


JARED    INGERSOLL,    L.L.D. 

fond  of  doing,  of  the  many  incidents  and  anecdotes  of 
their  diversified  and  multifarous  experience.  For  a 
considerable  time,  they  were  in  the  habit  of  giving 
weekly  and  reciprocal  dinner  or  supper  parties,  and  it 
may  be  well  conceived  that  nothing  physical  or  intel- 
lectual, in  the  way  of  rational  enjoyment,  was  deficient 
in  their  repasts.  Their  fortunes  were  for  the  most 
part  abundantly  ample,  if  not  princely ;  their  private 
income  alone  ranged  from  ten  to  twenty  thousand  dol- 
lars a  year ;  and  with  some  of  them,  their  practice 
equalled,  if  it  did  not  exceed  that  amount.  But  talents, 
not  fortune,  was  the  standard  by  which  they  were 
estimated,  and  that  was  indeed  the  standard  which 
secured  them  social  and  professional  equality.  Such 
principles,  and  such  continued  intimacy,  rendered  them, 
as  it  were,  a  band  of  confiding  brothers,  spurning  all 
circumvention  and  artifice  themselves,  and  never  sus- 
pecting or  countenancing  it  in  others. 


VOL.  i. — 32 


CHAPTER  XL 

WILLIAM    BRADFORD,    L.L.D. 

BORN,  SEPT.  14,  1755— DIED,  AUG.  23,  1795. 

ALTHOUGH  our  attention  was  directed,  mainly,  to  the 
Chief  Justices  of  Pennsylvania,  yet,  it  is  allowable, 
when  extraordinary  ability  incidentally  presents  itself, 
to  bestow  upon  it,  at  least,  a  passing  notice.  We  have, 
therefore,  thought  proper  to  introduce  a  very  brief  out- 
line of  one  of  the  most  remarkable  men  of  the  last  cen- 
tury. One  who,  at  a  period  of  life  when  most  men  are 
scarcely  profitably  known,  had  achieved  the  highest 
honors,  and  secured  to  himself  the  admiration  and  gra- 
titude of  all  classes  of  his  fellow-citizens.  And  who, 
while  he  was  honored  by  the  confidence  of  Washing- 
ton, and  basked  in  public  favor,  and  enjoyed  public 
office  of  the  proudest  distinction,  philanthropically  di- 
rected his  lofty  mind  to  the  humane  purpose  of  ame- 
liorating the  features  of  the  criminal  code,  and  pre- 
serving human  life.  Thus  it  is,  that  great  men  se- 


WILLIAM    BRADFORD,    L.L.D. 

cured  by  their  morality,  what  they  acquired  by  their 
talents.  His  brilliant  genius  might  have  been  forgot- 
ten, his  powers  as  an  advocate  have  passed  away, 
with  the  stirring  times  and  occasions  which  called 
them  forth ;  but  his  humanity  stands  imperishably  in- 
scribed upon  the  records  of  the  State  and  the  country, 
and,  we  trust,  upon  a  Higher  Record,  which,  in  the 
language  of  Milton, 

"  No  time  can  change,  no  copier  can  corrupt." 

For  the  substance  of  this  brief  memoir,  we  are  par- 
tially indebted  to  a  sketch  from  the  pen  of  one,  who, 
from  his  own  mental  accomplishments,  was  qualified  to 
appreciate  the  accomplishments  of  Mr.  Bradford ;  and 
who,  in  the  full  exercise  of  the  learning  and  virtue 
which  he  has  commemorated  in  another,  has  prema- 
turely closed  his  own  brilliant  career.* 

William  Bradford  was  born  at  Philadelphia  on  the 
fourteenth  of  September,  1755.  He  died  on  the 
twenty-third  of  August,  1795,  not  having  reached  the 
completion  of  his  fortieth  year.  Yet,  within  this  compa- 
ratively limited  span  of  life,  he  exhibited  more  talents 
and  achieved  more  honors  than  any  other  man  of  his  day. 

In  the  spring  of  1769,  he  was  entered  at  Nassau 
Hall,  (Princeton  College,)  New  Jersey,  where  he  pur- 
sued his  studies  with  uncommon  assiduity.  He  there 

*  Horace  Binney  Wallace. 


492  THE  FORUM. 

formed  an  intimate  friendship  with  James  Madison, 
then  a  student  at  the  same  institution,  which  led  to  a 
correspondence  between  them  which  continued  for 
several  years. 

In  the  year  1772,  he  received  the  degree  of  Bache- 
lor of  Arts,  and  in  1775  became  Master  of  Arts. 

He  subsequently  became  a  student  of  law  in  the 
office  of  the  Honorable  Edward  Shippen,  afterwards 
Chief  Justice  of  Pennsylvania. 

Within  a  year  from  this  time,  in  the  summer  of 
1776,  he  entered  camp  as  a  volunteer,  and  was  ap- 
pointed, during  the  same  year,  a  Captain  in  the  Conti- 
nental Army,  and,  on  the  tenth  of  April,  1777,  he 
received,  by  a  ballot  in  Congress,  the  rank  of  Colonel 
in  the  Army  of  the  United  States,  being  then  but 
twenty-two  years  of  age. 

He  was  with  the  army  at  head-quarters,  at  White 
Plains,  Fredericksborough,  and  Raritan,  during  1778, 
but  left  the  service  the  next  year,  on  account  of  ill 
health. 

He  resigned  on  the  first  of  April,  1779,  and  re- 
turned to  his  legal  studies.  In  March,  of  the  same 
year,  he  was  admitted  to  practice  in  the  Supreme 
Court  of  Pennsylvania,  on  the  very  day  of  the  admis- 
sion of  Moses  Levy,  who  long  survived  him,  and  wTho 
also  reached  great  eminence  in  the  legal  profession. 

In  August,  1780,  when  only  twenty-five  years  of 
age,  and  one  year  at  the  bar,  he  received  the  appoint- 


WILLIAM    BRADFORD,    L.L.D.  493 

ment  of  Attorney-General  of  the  State,  as  the  succes- 
sor of  Jonathan  Dickinson  Sergeant,  one  of  the  bright- 
est luminaries  of  the  bar. 

We  must  not  here  omit  the  opinion  of  Mr.  Rawle, 
in  relation  to  this  truly  amiable  and  eminent  man. 
What  Mr.  Rawle  touches,  admits  of  no  improvement, 
and  insures  respect.  And  thus  he  speaks  of  Bradford : 

"After  this  appointment,  he  advanced,"  says  Mr.  Kawle,  "with 
a  rapid  progress  to  an  eminence  of  reputation,  which  never  was  de- 
faced by  petty  artifices  of  practice,  or  ignoble  associations  of 
thought.  His  course  was  lofty,  as  his  mind  was  pure;  his  elo- 
quence was  of  the  best  kind ;  his  language  was  uniformly  classi- 
cal ;  his  fancy  frequently  interwove  some  of  those  graceful  orna- 
ments, which  delight  when  they  are  not  too  frequent,  and  do  not 
interrupt  the  chain  of  argument. 

"  Yet  his  manner  was  not  free  from  objection.  I  have  witnessed 
in  him  what  I  have  occasionally  noticed  in  the  public  speeches  of 
Charles  James  Fox,  a  momentary  hesitation  for  want  of  a  particu- 
lar word,  and  stopping  and  recalling  part  of  a  sentence,  for  the 
purpose  of  amending  it ;  nor  was  his  voice  powerful,  nor  always 
varied  by  those  modulations  of  which  an  experienced  orator  knows 
the  utility. 

"  His  temper  was  seldom  ruffled,  and  his  speeches  were  gene- 
rally marked  by  moderation  and  mildness.  The  only  instance  in 
which  I  remember  much  animation,  was  in  a  branch  of  the  case  of 
Grirard  v.  Basse  and  Soyer,  which  is  not  in  print.  The  principal 
case  is  in  1  Dallas,  119.  Mr.  Bradford  was  concerned  for  the  un- 
fortunate Soyer." 

Mr.  Samson  Levy,  in  his  agreeable  way,  introduces 


494  THE  FORUM. 

an  anecdote  in  regard  to  Mr.  Bradford,  which  sheds 
some  light  upon  our  subject,  though  it  would  seem  to 
have  been  drawn  more  from  fancy  than  fact. 

Mr.  Levy,  when  charged  with  being  admitted  very 
early  to  the  bar;  for  the  purpose  of  disproving  the 
charge,  which  was  made  by  Mr.  Hallowell  and  Mr.  W. 
H.  Todd,  (for  Levy  was  very  sensitive  on  the  subject 
of  his  age,)  stated,  in  the  presence  of  those  gentlemen 
and  many  others,  that  he  was  but  a  mere  boy  when 
they  were  in  full  practice ;  and  to  confirm  his  asser- 
tion, related  the  following  story.  "  I  wandered  into 
the  court,"  said  he,  "  upon  one  occasion,  sitting  then  at 
the  corner  of  Second  and  Market  streets,  where  I  found 
a  very  handsome  young  man,  charged  with  counterfeit- 
ing the  coin  of  the  United  States.  William  Bradford 
conducted  the  prosecution,  and  Mr.  Hallowell  and  Mr. 
Todd  were  concerned  for  the  defendant.  Mr.  Hallo- 
well  did  the  speaking,  and  earnestly  maintained  the 
perfect  innocence  of  the  defendant.  Mr.  Todd,  by 
dint  of  putting  the  corner  of  his  handkerchief  into  his 
eye,  contrived  to  do  the  weeping,  and  enlist  sympathy 
in  behalf  of  the  prisoner.  The  whole  scene  was  truly 
affecting.  When,  after  an  address  of  some  hours  from 
Brother  Hallowell,  as  I  now  take  leave  to  call  him, 
though  he  then  seemed  old  enough  to  be  my  father, 
Mr.  Bradford  rose  to  reply,  but  he  simply  said,  '  In 
answer  to  this  eloquent  appeal,  I  merely  request  the 
crier  to  raise  the  redundant  locks  of  the  defendant's 


WILLIAM    BRADFORD,    L.L.D.  495 

hair.'  This  was  done ;  and,  behold,  he  had  been  crop- 
ped of  both  ears!  Hallowell  and  Todd  ran  out  of 
court,  and  the  defendant  was  convicted,  of  course.  I 
was  but  a  child  at  the  time,  but  the  scene  will  for  ever 
remain  on  my  memory."* 

On  the  22nd  of  August,  1791,  Governor  Mifflin 
appointed  Mr.  Bradford  one  of  the  Justices  of  the  Su- 
preme Court,  in  the  place  of  William  Allen,  and  as  a 
crowning  glory,  on  the  28th  of  January,  1794,  having 
resigned  the  office  of  Judge,  he  was  commissioned  by 
President  Washington,  Attorney-General  of  the  United 
States,  in  the  place  of  Edmund  Randolph,  who  became 
Secretary  of  State. 

On  the  8th  of  August,  1794,  he  was  chosen  one  of 
the  commissioners,  to  confer  with  the  agitators  and  citi- 
zens engaged  in  the  Western  insurrection.  The  com- 
missioners failed  in  their  purpose,  and  reported  to 
President  Washington  on  the  24th  of  September,  that 
the  laws  could  not  be  enforced  by  the  usual  course  of 
civil  authority,  and  that  some  more  competent  force 
was  necessary  to  cause  them  to  be  duly  executed,  and 
to  insure  to  the  officers  and  well  disposed  citizens,  that 
protection  which  it  was  the  duty  of  government  to  afford. 

The  President  accordingly  at  once  issued  his  procla- 
mation, giving  notice  that  a  military  force,  adequate 

*  This  episode  is  introduced,  to  show  the  estimate  in  which  Mr.  Brad- 
ford was  held  by  the  earlier  members  of  the  bar,  as  well  as  to  exhibit  an 
amusing  trait  in  the  character  of  Mr.  Levy. 


496  THE  FORUM. 

to  the  emergency,  was  already  approaching  the  scene 
of  disaffection.  The  result  of  this  insurrection  is 
known.  In  the  course  of  the  correspondence  con- 
nected with  it,  the  great  intellectual  power  of  Mr. 
Bradford  was  conspicuous,  and  properly  appreciated. 

But  then  there  was  another,  and  a  moral  triumph, 
that  he  enjoyed,  which  has  entailed  blessings  upon  his 
name,  that  shall  endure  while  the  memory  of  his  virtue 
shall  last. 

In  the  year  1792,  while  Justice  of  the  Supreme 
Court,  when  the  revision  of  the  criminal  laws,  in  re- 
gard to  capital  punishments,  was  before  the  Assembly 
of  Pennsylvania,  at  the  request  of  Governor  Mifflin, 
he  drew  up  a  report  for  the  use  of  the  Legislature,  the 
conclusion  of  which  was,  after  very  able  argument, 
that  in  all  cases  except  high  treason  and  murder,  the 
punishment  of  death  might  safely  be  abolished,  and 
milder  penalties  advantageously  introduced. 

On  the  22nd  of  February,  1793,  the  Senate,  in  pur- 
suance of  this  report,  passed  a  resolution,  that  for  all 
offences,  except  murder  in  the  first  degree,  the  punish- 
ment should  be  changed  to  imprisonment  at  hard  labor, 
and  on  the  22nd  of  April,  1794,  an  Act  was  passed  to 
the  effect,  that  no  crime  whatsoever,  except  murder  of 
the  first  degree,  shall  be  punished  with  death  in  the 
State  of  Pennsylvania.*  This  humane  result  was 

*  The  preamble  to  this  Act  sets  forth,  that  whereas,  "  The  design  of 
punishment  is  to  prevent  the  commission  of  crime,  and  to  repair  the  in- 


WILLIAM    BRADFORD,    L.L.D.  497 

principally  attributable  to  the  learning,  talents,  and 
unwearied  industry  of  William  Bradford,  and  imparted 
to  him  a  glory,  which  no  time  can  efface. 

In  the  midst,  however,  of  his  career  of  usefulness 
and  unsullied  virtue,  in  the  perfection  of  his  hopes 
and  his  genius,  his  life,  interesting  and  invaluable  as 
it  was,  was  suddenly  terminated. 

During  the  summer  of  1795,  his  residence  was  at 
Rose  Hill,  in  Burlington,  New  Jersey.  'The  cabinet  of 
General  "Washington  was  at  that  time  closely  occupied ; 
the  official  duties  of  Mr.  Bradford,  engrossing  all  the 
day  in  the  city,  obliged  him  to  return  to  his  residence 
at  night ;  this  exposure  produced  a  fever  of  which  he 
died,  on  the  seventeenth  day  of  August,  1795,  before 


jury  done  thereby  to  society,  or  the  individual ;  and  it  hath  been  found  by 
experience,  that  these  objects  are  better  attained  by  moderate  and  certain 
penalties,  than  by  severe  and  excessive  punishments.  And  whereas,  it  is 
the  duty  of  every  government  to  endeavor  to  reform,  rather  than  extermi- 
nate offenders  ;  and  the  punishment  of  DEATH  ought  never  to  be  inflicted, 
where  it  is  not  absolutely  necessary  to  the  public  safety.  Therefore,  no 
crime  but  murder  in  the  first  degree  shall  be  punished  with  death."  The 
next  section  of  the  Act  defines  briefly  and  distinctly,  the  difference  between 
murder  in  the  first  and  second  degree,  thus  :  "All  murder,  which  shall  be 
perpetrated  by  means  of  poison,  or  by  lying  in  wait,  or  by  any  other  kind 
of  wilful,  deliberate,  and  premeditated  killing,  or  which  shall  be  commit- 
ted in  the  perpetration,  or  attempt  to  perpetrate,  any  arson,  rape,  robbery, 
or  burglary,  shall  be  deemed  murder  of  the  first  degree ;  and  all  other 
kinds  of  murder  shall  be  deemed  murder  of  the  second  degree.  The 
punishment  of  murder  in  the  second  degree,  is  imprisonment  in  the  State 
penitentiary,  for  a  period  not  less  than  four,  nor  more  than  twelve  years." 


498  TnE  FORUM. 

he  was  forty  years  old.  He  was  buried  at  St.  Mary's 
church,  Burlington,  and  his  monument  bears  the  fol- 
lowing inscription,  composed  by  Dr.  Charles  Wharton, 
a  learned  divine  and  rector  of  the  Episcopal  church 
referred  to : — 


Here  lie  the  remains 

of 

WILLIAM   BRADFORD, 

ATTORNEY-GENERAL    OF   THE   UNITED    STATES, 

under  the  Presidency  of  Washington, 

and 

previously  Attorney-General  of  Pennsylvania,  and  a  Judge  of  the 
Supreme  Court  of  that  State. 

In  private  life 
he  had  acquired  the  esteem  of  all  his  fellow-citizens ; 

in_Professional  attainments 
he  was  learned  as  a  Lawyer,  and  eloquent  as  an  Advocate. 

In  the  execution  of  his  public  offices, 
he  was  vigilant,  dignified,  and  impartial ; 

yet,  in  the 
bloom  of  life ;  in  the  maturity  of  every  faculty,  that  could  invigorate 

or  embellish  the  human  mind  ; 
in  the  prosecution  of  the  most  important  services  that  a  citizen 

could  render  to  his  country; 

in  the  perfect  enjoyment  of  the  highest  honors 

that  public  confidence  could  bestow  on  an  individual ; 

Blessed 
in  all  the  pleasures  which  a  virtuous  reflection  could  furnish  from  the  past, 

and 
animated  by  all  the  incitements  which  an  honorable  ambition  could 

depict  in  the  future,  he  ceased  to  be  mortal. 
A  fever,  produced  by  a  fatal  assiduity  in  performing  his  official  trust, 

at  a  crisis  interesting  to  the  nation, 

suddenly  terminated  his  public  career — extinguished  the  splen- 
dor of  his  private  prospects, 

and 
on  the  twenty-third  day  of  August,  1795,  in  the  fortieth  year  of  his  age, 

consigned  him  to  the  grave, 
Lamented,  Honored,  and  Beloved. 


CHAPTER    XII. 

WILLIAM    RAWLE,   L.L.D. 

BOKN,  APRIL,  1759  — DIED,  1832. 

WILLIAM  RAWLE  was  born  on  the  twenty-eighth  day 
of  April,  1759,  of  honorable  and  distinguished  parent- 
age, of  the  Society  of  Friends;  yet  their  proudest 
distinction  (we  say  it  with  no  disparagement,)  was  in 
giving  birth  to  such  a  son.  The  earlier  years  of  his 
life  were  passed  in  the  acquisition  of  the  rudiments  of 
education,  and  those  sublime  principles  of  elevated 
religion  and  morality,  which  were  in  after  times  ma- 
tured into  the  most  devout  and  exemplary  piety.  At 
the  age  of  nineteen,  having  passed  through  the  various 
stages  of  preliminary  instruction  in  his  native  land,  and 
having  for  some  years  been  engaged  in  prosecuting  his 
legal  studies  under  Counsellor  Kemp,  a  learned  jurist 
of  our  sister  city  of  New  York,  just  before  the  com- 
mencement of  the  American  Revolution,  he  visited  the 


500  THE    FORUM. 

mother  country,  for  the  purpose  of  perfecting  himself 
in  the  arduous  duties  of  the  profession  for  which  he 
was  designed.  In  London,  he  was  regularly  installed 
as  a  Templar,  and  there  pursued  his  studies  with  that 
untiring  zeal  and  assiduity  which  ever  signally  marked 
his  career  through  a  subsequent  brilliant  practice  of 
more  than  half  a  century.  Had  he  remained  in  Europe, 
what  scope  is  there  for  speculation  as  to  the  heights  he 
would  have  realized  ?  In  such  a  realm,  is  it  venturing 
too  far  to  say,  that  a  coronet  was  not  above  his  grasp  ? 
What  was  there  in  the  pretensions  of  a  Copley,  beyond 
the  compass  of  his  mind  ?  What  was  there  in  their 
birth  or  early  hopes,  that  lent  stronger  claims  to  ad- 
vancement ?  What  was  there  in  their  morals  or  their 
manners,  more  exemplary  or  resistless  ? 

In  the  year  1783,  he  returned  to  this  country,  full 
of  zeal  and  hope,  a  most  thorough  and  accomplished 
gentleman;  a  ripe  and  elegant  scholar,  an  artist,  a 
poet,  a  philosoper ;  and,  without  which  all  other  accom- 
plishments are  but  dross — a  CHRISTIAN.  What  a  beau- 
tiful, moral,  and  intellectual  picture  does  such  a  man, 
at  such  an  age,  present  ? 

"  How  must  his  worth  be  seeded  in  his  age, 
When  thus  his  virtues  bud  before  their  spring  ?" 

In  person,  he  was  rater  above  the  middle  height, 
yet  so  symmetrical  in  his  proportions  as  by  no  means 


WILLIAM    RAWLE,    L.L.D.  501 

to  produce  that  conclusion  in  a  casual  beholder.  In 
his  early  life,  he  must  have  been  eminently  handsome, 
for  even  at  the  age  of  seventy-seven  years,  when  he 
died,  his  features,  and  the  whole  contour  and  expres- 
sion of  his  face,  were  such  as  to  inspire  every  one  with 
the  strongest  veneration  and  regard.*  The  formation 
of  the  upper  part  of  his  head,  which  rose  like  a  tower, 
was  such  as  might  delight  and  fascinate  the  phrenolo- 
gist ;  but  it  is  to  the  internal  structure  of  the  man  that 
our  attention  is  to  be  directed,  and  that  all  must  rejoice 
to  turn. 

On  the  fourth  day  of  September,  1783,  he  was  ad- 
mitted to  practice  in  the  Supreme  Court. 

He  launched  at  once  into  the  busy  and  tumultuous 
tide  of  a  diversified  professional  life.  He  took  his  post 
where  nature  and  education  both  placed  him,  in  the 
very  front  rank  of  the  profession.  He  maintained  his 
ground  with  such  men  as  Lewis,  and  Wilson,  and 
Tilghman,  and  Ingersoll,  and  Dallas,  and  gathered  in 
his  forensic  career,  "  golden  opinions  from  all  sorts  of 
people."  There  never  was  a  more  enlightened  and 
unblemished  advocate,  or  a  more  conscientious  and 
valuable  citizen,  than  the  subject  of  this  memoir. 

With  a  spirit  that  would  have  done  credit  to  the 
best  ages  of  chivalry,  tempered  by  the  most  bland  and 

*  There  is  an  admirable  portrait  of  him,  at  the  age  of  seventy,  in  the 
Law  Library,  painted  by  Inman,  by  order  of  the  members  of  the  Phila- 
delphia bar. 


502  THE  FORUM. 

courteous  manners;  with  a  princely  income,  derived 
from  his  private  fortune  and  professional  emoluments, 
and  with  a  soul  alive  to  all  the  sympathies  and  chari- 
ties of  life ;  surrounded,  in  the  progress  of  time,  by  a 
large,  devoted,  and  lovely  family,  he  stood  the  very 
centre  of  the  social  circle,  and  his  influence  radiated  to 
the  extremest  verge  of  benevolence  and  hospitality.  In 
his  social  intercourse,  no  stranger  would  have  supposed 
him  to  be  a  lawyer.  So  nicely  blended  were  all  the 
accomplishments  of  this  great  man,  with  each  other, 
that  while  the  combination  was  perfect,  each  integral 
part  of  his  character  was  so  beautiful  in  itself,  as  to 
impart  loveliness  to  all  around  it,  and  thereby  lose 
anything  like  distinctive  or  individual  claims  to  our 
attention.  Like  the  grouping  of  the  statuary  of  Phi- 
dias or  Praxitiles,  each  particular  figure  would  seem 
to  lose  its  individuality,  in  its  contribution  to  the 
general  beauty  and  harmony  of  the  design.  Or,  still 
more  clearly  to  express  the  idea,  in  the  language  of 
one  that  never  fails — 

"  His  life  was  gentle,  and  the  elements 
So  mixed  in  him,  that  nature  might  stand  up 
And  say  to  all  the  world, — '  This  was  a  man.1 " 

The  life  of  a  professional  man  is  like  the  waves  of 
the  ocean — a  scene  of  constant  agitation — ever  chang- 
ing and  still  ever  the  same.  To-day,  the  tempest  may 
rage  and  the  sea  run  mountain  high  :  to-morrow,  it  may 


WILLIAM    RAWLE,    L.L.D.  503 

be  as  smooth  and  placid  as  ere  winds  began  to  blow : 
but  the  eternal  depth  of  waters  ever  remains  the  same. 
So  with  professional  life.  In  ordinary  pursuits,  the 
cares  of  men  may  be  considered  as  limited  to  their 
own  immediate  concern;  and  although  in  a  state  of 
society  no  one  can  be  perfectly  free  from,  or  indepen- 
dent of,  a  participation  in  the  common  liabilities  of 
the  community,  yet  the  very  vocation  of  a  lawyer  in 
extensive  practice,  and  properly  alive  to  his  duties, 
renders  him  peculiarly  the  depository  of  the  cares 
and  anxieties — the  fame  and  the  fortune — the  liberty 
and  lives  of  thousands,  who  may  have  confided  in  his 
integrity  and  talents.  The  bosom  of  an  affectionate 
family  may  afford  relief  for  private  care ;  for  private 
suffering,  and  sympathy  by  sharing  in  our  afflictions, 
alleviates  the  load;  but  the  griefs  and  penalties  of  a 
lawyer  are  to  be  borne  by  himself  alone.  He  has  not 
even  the  melancholy  privilege  of  imparting  them  to 
others,  even  the  client  who  consults  with  him,  dis- 
charges his  own  sorrows  upon  the  bosom  of  his  profes- 
sional adviser,  and,  strange  as  it  may  appear,  really 
enjoys  a  comparatively  happy  and  enviable  position. 
The  doctor,  perhaps,  more  nearly  approaches  to  the 
feelings  and  condition  of  the  lawyer  than  the  profes- 
sor of  any  other  science.  But  even  he  is  far,  far  re- 
moved from  the  anxieties  of  the  legal  profession. 
Under  the  effect  of  bodily  pain,  and  the  grievous  loss 
of  relatives  and  friends,  most  men  groan  alike,  but 


504  THE  FORUM. 

how  various  and  diversified  are  the  manifestations  of 
the  afflictions  of  the  mind.  There  are  mental  suffer- 
ings that  far  exceed  the  most  poignant  pains  of  the 
body,  and  which  would  willingly  be  exchanged  for 
even  the  horrors  of  death  itself.  These,  for  the  most 
part,  form  the  business,  nay,  the  very  life  of  a  lawyer, 
and  especially  the  advocate.  The  sanctity  of  his  office 
is  more  than  equal  to  that  of  the  confessional  itself. 
Necessity  here  rends  the  mask  from  hypocrisy ;  and 
grief  and  penitence,  remorse  and  shame  assume  their 
true  features. 

How  much  reputation,  how  many  fortunes,  how 
many  lives  depend,  upon  the  fidelity  of  counsel  ? 
Bearing  with  him  through  life  the  consciousness  of  the 
weight  of  this  responsibility — occupied  and  distracted 
by  a  thousand  cares — subject  to  daily  competition  and 
liable  to  daily  defeats,  is  it  not  truly  wonderful  that 
E-AWLE  should,  nevertheless,  have  possessed  the  power, 
which  he  did  in  an  eminent  degree,  of  abstracting  the 
mind  from  these  annoyances  of  life,  and  adapting  him- 
self to  all  the  phases  and  varieties  of  social  and  fami- 
liar intercourse.  This  may  be  considered  an  almost 
infallible  test  of  true  greatness  of  soul.  Proficiency  in 
any  art  or  science  is  more  than  counterpoised,  if  it 
result  in  divesting  the  heart  of  those  social  and  affec- 
tionate properties  which  endear  mankind  to  each  other, 
and  constitute  the  chief  charm  of  human  life.  By  an 
exclusive  devotion  to  law,  medicine,  or  even  theology, 


WILLIAM    RAWLE,    L.L.D.  505 

almost  any  one  may  become  a  great  divine,  an  eminent 
physician,  or  a  distinguished  jurist,  but  still  be  far, 
very  far  removed  from  a  great  man.  True  greatness 
cannot  exist  without  sympathy  between  head  and 
heart,  and  their  reciprocal  contribution  to  the  employ- 
ments of  each  other.  It  was  by  such  sympathy,  that 
the  beautiful  and  harmonious  combination  was  formed, 
which  was  presented  in  the  life  of  the  deceased. 

In  1791,  he  was  appointed  District  Attorney  of  the 
United  States  by  the  Father  of  his  country,  from  which, 
shortly  after  the  election  of  Mr.  Adams,  he  resigned, 
having  continued  in  office  about  eight  years.  The 
situation  of  Attorney-General,  was  more  than  once  ten- 
dered to  him  by  Washington,  but  as  often  declined,  as 
being  calculated  to  interfere  with  those  domestic  en- 
joyments for  which  no  public  preferment  or  profit 
could  furnish  an  equivalent :  and  the  President  was 
himself  too  much  alive  to  the  influence  of  retirement 
and  domestic  virtue,  to  demand  a  sacrifice  from  ano- 
ther which  he  himself  so  reluctantly  made. 

An  appointment  to  so  high  a  trust,  and  from  so  pure 
a  source,  and  at  the  age  of  thirty  years,  when  most  men 
are  unknown,  is  an  abundant  indication  of  extraordi- 
nary merit ;  and  the  fidelity  and  ability  displayed  by 
him  during  the  continuance  of  office,  more  than  con- 
firmed the  exalted  expectations  which  gave  rise  to  the 
appointment ;  and  in  all  modesty  it  may  be  said,  that 
never  before  nor  since  that  time,  have  the  interest  and 
VOL.  i.— 33 


506  THE  FORUM. 

dignity  of  the  United  States  been  more  signally  repre- 
sented or  more  scrupulously  maintained.  He,  as  has 
been  said,  was  not  simply  a  lawyer.  A  mere  lawyer  is, 
at  most,  but  the  moiety  of  a  man — heartless  and  soul- 
less ;  his  exclusive  devotion  to  a  stern  and  unfeeling 
science,  blunts  all  the  finer  emotions  of  his  nature,  and 
at  length  he  becomes,  like  Coke,  the  scourge  of  his 
own  family,  and  the  relentless  and  ferocious  adversary 
of  genius  and  generosity. 

With  Rawle,  the  law  was  but  one  of  the  elements  in 
the  proud  structure  of  his  eminence.  The  whole  circle 
of  the  arts  and  sciences  was  tributary  to  his  formation. 
In  painting  and  sculpture,  his  taste  had  been  modelled 
by  the  best  standards ;  and  in  the  former  of  those  arts, 
there  were  but  few  amateurs  that  could  excel  him. 
Of  poetry,  he  was  a  devoted  admirer ;  and  he  himself 
wooed  the  muses  with  all  the  grace  and  success  of  a 
legitimate  suitor.  In  philosophy,  he  was  a  zealous 
disciple ;  and  his  beautiful  translation  from  the  Greek 
of  the  Phsedon  of  Plato,  with  his  own  practical  com- 
mentary, would  in  themselves,  and  alone,  suffice  to 
protect  his  name  against  oblivion.  Among  the  most 
cherished  and  the  most  valuable  of  his  works,  how- 
ever, and  which,  I  trust,  will  not  be  withheld  from  the 
world,  are  those  pertaining  to  the  subject  of  religion. 
His  "  Essay  upon  Angelic  Influences"  is  replete  with 
the  most  fascinating  speculation  and  the  soundest  re- 
flection. Nor  is  his  discussion  of  the  subject  of  "  Ori- 


WILLIAM    RAWLE,    L.L.D.  5Q7 

ginal  Sin  and  the  virtue  of  Baptism/'  although  less 
elaborate,  undeserving  of  the  highest  regard  and  en- 
comium. Added  to  these,  there  is  to  he  found  among 
his  manuscripts  an  argument  of  the  most  polished  and 
cogent  character,  the  object  of  which  is  to  show  that 
there  is  sufficient  proof  of  the  truth  of  Christianity,  to 
be  derived  from  the  parables  of  our  Saviour  alone. 

Neither  time  nor  space  will  allow  us  to  enter  into 
a  critical  dissertation  upon  the  merits  of  these  works. 
A  few  extracts,  calculated  to  impart  a  knowledge  of 
the  character  of  the  author's  mind,  will  suffice  for 
the  present  purpose.  In  the  treatise  upon  original 
sin,  after  having  carefully  considered  the  various  doc- 
trines of  Ashmead,  Townsend,  the  Bishop  of  Roches- 
ter, Doddridge,  Wilberforce,  and  others,  he  thus  con- 
cludes : — 


"  I  have  sometimes  asked  myself,  of  what  use  are  these  specu- 
lative inquiries  ?  Is  it  of  any  consequence  to  a  practical  Christian, 
whether  punishable  sin  proceeds  from  Adam,  or  ourselves  ?  Whe- 
ther future  punishment  is  to  be  temporary  or  eternal  ?  Is  not  the 
duty  of  every  individual  the  same  ?  Is  it  not  his  duty  to  act  justly, 
to  abstain  from  all  crime,  to  repent  of  former  offences,  to  believe 
in  Christ,  to  observe  and  fulfil  his  precepts,  to  worship,  love,  and 
fear  God  ?  In  all  these,  every  sect  concurs." 


The  translation  of  Phsedon,  which  has  been  referred 
to   as  incomplete,  seems   to  have  been  commenced 


508  THE  FORUM. 

purely  with  reference  to  the  doctrine  of  Plato,  upon 
the  "  Immortality  of  the  Soul ;"  but,  to  use  his  own 
language,  the  translator,  upon  a  careful  examination, 
found  so  much  of  it  directed  to  points  below  what  he 
expected  from  the  high  interest  of  the  subject,  that 
after  a  time  he  relinquished  the  undertaking.  Even 
in  its  present  imperfect  condition,  however,  it  is  a 
treasure  that  ought  not  to  be  withheld  from  the  public. 
His  notions  on  the  subject  of  religion  were  in  some 
respects  singular ;  but,  at  the  same  time,  so  simple  and 
so  pure,  as  to  bear  conclusive  evidence  of  the  simplicity 
and  beauty  of  his  mental  structure.  He  was  an  un- 
qualified admirer  of  the  service  of  the  Church  of  Eng- 
land, but  at  the  same  time  expressed  his  doubts  as  to 
the  efficacy  of  its  formal,  regular,  daily  repetition.  To 
use  his  own  language : 

"  The  congregation  comes  forward  mechanically,  to  repeat  the 
same  thoughts  in  the  same  words.  The  sweet  influence  of  Jesus, 
as  applicable  to  our  individual  conditions,  our  afflictions,  or  our 
causes  for  thanksgiving,  is  absorbed  in  one  general  mass.  If  we 
join  in  it,  we  may  lose  sight  of  ourselves ;  if  our  hearts  do  not  join 
in  it,  we  are  deceivers.  We  are  hurried  on  too  rapidly  for  reflec- 
tion ;  without  time  for  internal  communion  with  the  Divine  Being, 
who  is  invisibly  present,  we  accept  and  use  the  work  of  man,  instead 
of  that  spiritual  co-operation,  which  we  are  instructed  by  his  own 
words  to  expect  from  him." 

Nor,  although  he  preferred,  did  he  entirely  approve 


WILLIAM    RAWLE,    L.L.D.  509 

the  mode  adopted  in  the,  worship  of  the  Friends,  of 
which  religious  persuasion  he  was  born,  and  long  con- 
tinued a  member,  and  always  a  strict  adherent.  He 
inclined  to  the  opinion  that  some  appropriate  passage 
from  those  inexhaustible  sources  of  light  and  love,  the 
Old  and  New  Testament,  should  be  introduced  into 
their  service,  upon  the  assemblage  of  the  congregation, 
in  order  that  they  might  be  solemnly  and  sacredly 
impressed  with  the  importance  of  the  subject,  in  refer- 
ence to  which  they  had  been  convened ;  in  other  words, 
that  they  might  be  brought  into  tone  and  keeping  with 
the  occasion.  To  remedy  this  defect  in  the  form  of 
worship,  for  many  years  of  his  life,  as  appears  from 
his  journals,  it  was  his  ha~bit,  before  attending  the 
house  of  God,  to  read  some  portion  of  Holy  Writ,  and 
to  engage  deeply  in  "  felt,  but  voiceless  prayer,"  before 
the  throne  of  the  Most  High. 

The  favorite  theory  of  this  extraordinary  man,  was 
that  which  related  to  angelic  influences,  and  the  imme- 
diate agency  of  the  Deity  in  all  the  concerns  of  his 
fallen  creatures.  After  infinite  reading,  as  his  notes 
and  commentaries  show,  upon  these  subjects,  his  mind 
settled  down  upon  the  conviction  that,  in  all  our  walks 
through  life,  we  were  accompanied  by  good  and  bad 
angels,  and  that  the  Almighty  and  the  Saviour  of  the 
world  were  everywhere  present;  all-pervading,  not 
only  in  the  churches  where  two  or  three  persons  had 
assembled  together  in  their  holy  name,  but  in  the 


510  THE    FORUM. 

seclusion  of  the  study,  and  the  more  active  pursuits  of 
public  life.  He  thus  concludes  his  elaborate  examina- 
tion into  the  truth  of  this  doctrine  : — 

"  Awful,  but  most  consolatory  thought !  Wherever  I  am,  God 
is !  wherever  I  am,  Jesus  also  is !  Here,  then,  in  my  chamber, 
where  I  sit,  is  God  !  here  also,  is  Christ !  Let  me  ever  retain  this 
impression.  Let  me  ever  consider  them  as  present  at  all  my  actions, 
and  as  reading  and  knowing  all  my  thoughts.  May  I  not,  under 
this  daily  inspection,  gradually  purify  my  polluted  heart,  and  amend 
my  erring  life  ?  Blessed  Saviour,  assist  me  so  to  do  I" 

And  again,  in  considering  the  same  subject,  a  short 
time  before  his  death,  he  exclaims  : — 

"  Gracious  God,  Jesus  Christ,  Saviour  of  man !  let  me,  a  mise- 
rable sinner,  hope  for  that  mercy  which  will  ope  for  me  the  cham- 
ber of  blessedness.  God  is  ever  present.  Jesus  Christ  is  ever 
with  us.  They  know  my  most  secret  thoughts.  How  often,  not- 
withstanding all  my  efforts,  are  those  thoughts  unworthy  of  such  a 
presence  ?  Oh,  may  I  be  able  to  purify  the  mind  !  Let  me  figure 
to  myself,  that  my  thoughts  are  words  uttered  in  the  hearing  of  my 
Saviour  and  my  God — will  it  not  restrain  them  ?  Shall  I  not  at 
once  perceive  how  flagrant  it  would  be,  in  such  language  to  address 
my  Lord,  my  Saviour,  my  blessed  Jesus  ?  Oh,  thou  benevolent 
and  powerful  Being,  who  hast  perhaps  infused  into  me  these  awful 
impressions,  aid  and  strengthen  me  to  execute  them  as  they  ought 
to  be,  in  the  full  sense  of  thy  goodness,  and  in  the  humble  venera- 
tion of  thy  name  !  Let  me  in  future  always  consider  thy  divine 
figure  as  present,  although  invisible.  Let  me  endeavor  to  enter 
into  sweet  communion  with  thee.  *  How  rapturous  the  thought ! 


WILLIAM    RAWLE,    L.L.D. 

And  how  can  I  fail,  if  I  steadily  pursue  it  ?     How  can  I  fail  to 
amend  my  heart?" 

For  full  twenty  years  before  his  decease,  we  think 
we  are  able  to  say,  from  a  close  perusal  of  his  journal, 
his  mind  voluntarily  took  no  direction  that  might  not 
readily  be  traced  to  devotion  to  its  God;  and  the 
prayers  alone  to  be  found  in  his  works,  would  form  an 
admirable  model  for  domestic  piety.  With  a  single 
other  instance,  furnished  during  the  deepest  mental 
suffering,  I  will  temporarily  take  leave  of  this  deeply 
interesting  portion  of  his  history  : — 

"  Lord  God  !  who  hath  been  pleased  to  create  me ;  who,  among 
the  uncounted  millions  of  thy  works,  hath  vouchsafed  to  include 
me,  a  weak,  imperfect,  miserable  being;  have  pity  on  this  thy 
work.  Enable  me,  oh,  holy  parent !  in  some  degree  to  appreciate 
thy  greatness  and  thy  goodness ;  and  while  I  know  thy  power,  and 
fear  to  incur  thy  wrath,  enable  me,  oh,  Lord !  to  lift  up  to  thee 
my  humble  reverence  and  gratitude.  Oh,  may  my  afflictions 
purify  my  heart !  may  my  sorrows,  when  in  thy  wisdom  I  shall  be 
sufficiently  punished,  be  alleviated  or  removed !  and  whenever  it 
shall  please  thee  to  grant  these  prayers,  may  my  thankfulness  be 
equal  to, — may  it  unboundedly  surpass  the  depth  of  my  afflictions." 

On  the  twenty-seventh  of  First  month,  (January,) 
1792,  he  was  elected  an  honorary  member  of  "The 
Maryland  Society  for  promoting  the  Abolition  of  Sla- 
very ;"  and  on  the  sixth  of  Tenth  month  (October,) 


512  THE    FORUM. 

of  the  same  year,  became  a  member  of  the  Penn- 
sylvania Society,"  devoted  to  similar  objects. 

From  that  time,  until  the  hour  of  his  death,  he  was 
one  of  their  most  active  and  invaluable  counsellors. 
His  great  professional  success  was  frequently  the  sub- 
ject of  votes  of  thanks  from  the  institutions  to  which 
he  was  attached,  and  became  matters  of  peculiar 
notice,  when,  in  the  spring  of  1805,  he,  together 
with  Mr.  Jared  Ingersoll  and  Mr.  William  Lewis,  ar- 
gued before  the  High  Court  of  Errors  and  Appeals  of 
Pennsylvania  the  great  question,  as  to  the  constitu- 
tionality of  the  existence  of  slavery  in  this  State. 

In  the  month  of  March,  1818,  upon  the  decease  of 
Dr.  Caspar  Wistar,  another  of  the  Theban  band,  Mr. 
Rawle  was  unanimously  elected  President  of  the  So- 
ciety, and  so  continued  until  the  hour  of  his  death. 
How  deeply  he  commiserated  in  the  condition  of  the 
unhappy  bondsmen,  a  life  of  generous  devotion  to  the 
melioration  of  that  condition  abundantly  shows. 

His  struggles  in  behalf  of  those  who  were  incapable 
of  struggling  for  themselves  were  constant  and  un- 
wearied. In  such  a  contest,  which  he  nobly  sustained 
for  upwards  of  forty  years,  what  could  support  him  ? 
Nothing,  but  the  buoyant  consciousness  of  undeviating 
rectitude.  For  such  unceasing  efforts  what  could  re- 
ward him  ?  Nothing,  but  the  cheering  smiles  of  ap- 
proving heaven  here,  and  its  measureless  glories  here- 
after. The  objects  of  his  bounty  were  those  from 


WILLIAM    RAWLE,    L.L.D. 

whom  he  could  expect  no  return :  they  were  of  the 
proscribed  and  outlawed  race ;  and  even  while  vindicat- 
ing their  violated  rights,  he,  himself,  in  the  eye  of  their 
oppressors,  was  often  condemned  to  share  in  their 
odium,  and  almost  partake  of  their  penalties.  It  re- 
quired no  ordinary  mind,  no  common-place  influences 
thus,  at  the  same  tune,  to  encounter  the  shafts  of  pre- 
judice and  pride,  in  behalf  of  a  class  of  men,  who,  fet- 
tered themselves,  could  impart  no  aid  to  the  conflict, 
no  consolations  to  the  vanquished,  no  trophies  to  the 
victor.  What  laurels  shall  spring  from  the  barren  and 
arid  soil  of  Africa  ?  What  reward  shall  her  benighted 
and  enslaved  children  bestow,  to  requite  past  exertion 
or  stimulate  to  renewed  efforts,  while  every  where 
confronted  by  danger — every  where  disheartened  by 
dismay?  For  such  devotion  there  can  be  but  one 
motive,  and  that  is  humanity :  there  can  be  but  one 
recompense,  and  that  is  the  blessing  of  the  bleeding 
and  broken  heart,  upon  which  the  soul  shall  be  wafted 
to  the  bosom  of  its  God.  His  doctrines  upon  this 
subject,  which  were  the  doctrines  of  Franklin,  of  La 
Fayette,  of  Rush,  of  Wilberforce,  may  be  scoffed  at 
by  some,  and  condemned  by  others.  They  may  not 
have  been  safe  doctrines  to  live  by,  but  they  were  safe 
to  die  by. 

In  the  latter  part  of  the  year  1813,  I  became  a 
student  in  the  office  of  this  great,  good  man.  He  was 
then  about  fifty-five  years  old,  and  at  the  very  pin- 


514  THE    FORUM. 

nacle  of  professional  distinction.  I  shall  never  forget 
our  first  interview,  and,  I  trust,  shall  ever  feel  the  in- 
fluence which  it  tended  to  exercise  over  my  future  des- 
tiny. His  examination  was  directed  not,  as  is  usual, 
to  mere  intellectual  or  literary  attainments,  but  to 
moral  philosophy  and  religion,  "  considering  these,"  as 
he  at  that  time  impressively  said,  "  not  only  the  basis 
of  all  human  elevation,  but  the  rock  upon  which  our 
eternal  hopes  must  rest." 

What  a  lovely  picture  is  here  presented  in  this  simple 
lesson,  to  the  grave  and  reflecting  mind.  A  man  in  the 
very  harvest  of  life,  surrounded  by  all  that  could  dazzle 
or  bewilder — wealth — honors — pomp — pageantry,  and 
pride ;  without  having  incurred  a  single  check  in  his 
worldly  career ;  without  a  spot  upon  the  disk  of  his  fair 
fame ;  still  looking  upon  all  wordly  aggrandizement  and 
glory  as  the  affairs  of  a  day,  and  as  utterly  vain  and 
worthless,  except  as  subjects  of  gratitude  and  love  to- 
wards that  eternal  source  from  which  alone  can  all  true 
blessings  flow.  Addison,  it  is  said,  in  his  dying  moments, 
called  to  him  a  youth,  to  whom  he  was  warmly  attached, 
and  with  his  latest  breath  exclaimed,  "  Behold  me,  my 
child,  and  learn  from  my  example  how  a  Christian  can 
die !"  It  was  a  noble  spectacle,  truly,  but  much  less 
glorious  than  the  example  which  teaches  us  how  a 
Christian  should  live.  There  are  few,  perhaps,  who  in 
the  extremity  of  life,  when  brought  to  see  their  Maker 
face  to  face — there  are  very  few  we  trust — who  would 


WILLIAM    RAWLE,    L.L.D.  515 

not  feel  and  speak  like  Addison ;  but  the  great  tests  and 
touchstones  of  devotion  and  piety,  are  the  wordly  entice- 
ments and  fascinations  of  a  vigorous  and  successful  life. 

The  world  spent  its  quiver,  and  pleasure  exhaust- 
ed her  bowl,  upon  the  subject  of  this  brief  memoir. 
He  still  remained  invulnerable  and  unseduced,  and 
in  the  benevolence  and  philanthrophy  of  his  nature, 
sedulously  endeavored  to  impart  those  virtues  to 
others  which  his  own  heart  eminently  possessed,  and 
without  which  men  are  at  best  but  "  gilded  loam  or 
painted  clay." 

Let  it  not  be  understood  that  he  was  an  ascetic.  A 
more  colloquial,  sprightly,  or  familiar  companion  to  the 
young  or  the  old,  the  scholar  or  the  illiterate,  the  dis- 
tinguished or  the  humble,  would  be  sought  for  in  vain. 
Readily  adapting  himself  to  the  condition  of  all,  like 
his  great  wordly  model,  Washington,  whom,  in  many 
respects,  indeed,  he  closely  resembled,  he  could  erect 
himself  to  any  height  without  straining  his  natural 
proportions,  or  reduce  himself  to  any  level  without 
compromising  his  innate  dignity  and  worth.  We  have 
been  present  at  his  interviews  with  hereditary  lord- 
lings  and  immediate  representatives  of  foreign  mon- 
archs;  men  who  had  been  taught  to  believe  that  aris- 
tocracy was  confined  to  themselves,  and  who  strutted 
and  glittered  in  the  stars  of  their  several  orders.  His 
star,  was  the  Star  of  Bethlehem.  His  order  was  the 
order  of  the  king  of  Kings,  and  he  looked  upon  all 


516  THE    FORUM. 

tinselled  wordlings  as  mere  actors  in  the  drama  of  life 
— necessary  to  various  parts  of  our  transitory  exist- 
ence— entitled  to  respect  from  the  social  or  political 
position  they  might  occupy,  but  still  to  be  graduated 
and  adjusted  in  their  several  pretensions  by  the  mind 
— the  only  true  standard  of  the  man.  Tested  by  that 
standard,  what  competition  could  he  fear  ? 

But  it  is  the  bright  day  that  brings  forth  the  adder. 
Affliction  at  some  period  of  life  is  the  lot  of  all  men. 
Perhaps  it  is  even  necessary  to  men,  in  order  that  they 
may  feel  the  power,  as  well  as  enjoy  the  blessings,  of 
a  bountiful  Creator.  "What,  shall  we  receive  good  at 
the  hands  of  God,  and  shall  we  not  receive  evil?" 
Rightly  understood  and  applied,  the  chastening  influ- 
ence of  heaven  is  much  more  salutary  to  the  soul  than 
a  harmonious  and  uninterrupted  current  of  happiness. 
But  the  first  shock — the  first  revulsion  that  the  bark 
of  life  sustains,  while  gaily  and  majestically  gliding 
before  the  wind,  and  with  all  sail  set,  over  hope's 
mountain  wave,  is  awfully  terrible ;  it  is  the  contact 
of  man  with  the  Omnipotent,  and  human  nature  reels 
and  trembles  to  its  very  centre. 

In  the  year  1815,  fate  dashed  the  cup  of  happiness 
from  the  lips  of  our  lamented  friend.  One  of  his 
daughters,  an  ornament  to  society,  and  the  "immedi- 
ate jewel"  of  her  family,  in  the  bloom  and  redolence 
of  health  and  beauty,  and  with  intellectual  charms 
even  beyond  her  personal  attractions,  was  suddenly 


WILLIAM    RAWLE,    L.L.D. 

snatched  away  by  death,  and  left  an  aching  void  in 
the  heart  of  the  domestic  circle,  her  friends  and  the 
community,  which  the  alleviating  hand  of  time  par- 
tially concealed,  but  could  never  repair : — 

"  Sweet  rose — fair  flower,  untimely  plucked,  soon  faded ; 
Plucked  in  the  bud,  and  faded  in  the  spring." 

The  painter  who  exhibited  the  death  of  Iphigenia, 
while  he  disclosed  on  his  glowing  canvass  the  manly 
sympathy  of  Achilles,  and  the  stubborn  grief  of  Ulys- 
ses, threw  a  veil  over  the  face  of  Agamemnon,  the 
agonized  father,  and  thereby  acknowledged  the  inade- 
quacy of  art  to  portray  the  feelings  of  a  parent,  upon 
the  sacrifice  of  his  child.  Let  us,  then,  borrowing  in- 
struction from  this  classic  example,  draw  the  curtain 
over  those  griefs  which  the  heart  alone  can  feel,  but 
which  an  angel's  tongue  could  not  express. 

From  this  loss  he  never  wholly  recovered ;  but  like 
Job,  he  exclaimed :  "  The  arrows  of  the  Almighty  are 
within  me,  the  poison  whereof  drinketh  up  my  spirit. 
The  terrors  of  God  do  set  themselves  in  array  against 
me." 

Then  followed  the  death  of  another  dear  daughter, 
in  the  prime  of  youth  and  beauty;  next,  his  son  Henry, 
who  had  just  finished  his  classical  education  and  en- 
tered upon  the  study  of  the  legal  profession,  of  which 
he  was  every  way  qualified  to  become  a  distinguished 


518  THE    FORUM. 

ornament;  and  last  and  greatest,  in  the  year  1825,  his 
wife,  the  beloved  partner  of  his  bosom,  with  whom  he 
had  been  joined  in  affection  for  upwards  of  forty  years, 
was  summoned  to  her  last  and  blessed  abode,  leaving  a 
doating  and  bereaved  family,  to  mourn  her  irreparable 
loss. 

How  awful,  then,  to  the  survivor,  must  have  been 
the  blow  that  severed  them  from  each  other,  and  which 
left  him,  like  a  blighted  oak,  stripped  of  his  leaves, 
deprived  of  his  branches,  and  lastly,  robbed  of  that 
ivy  which,  for  nearly  half  a  century,  had  clung  around 
him,  attempering  the  storm,  and  rendering  even  desola- 
tion, lovely.  This  last  blow  bowed  his  spirit  to  the 
earth,  but  he  saw  in  it  the  impress  of  an  Almighty 
hand,  and  in  Christian  resignation  and  submission,  he 
directed  his  thoughts  from  that  moment  towards  those 
blissful  regions,  where  sin  and  sorrow  shall  be  no  more. 
Through  all  these  awful  visitations,  and  up  to  the  pe- 
riod of  his  death,  he  was  to  be  traced,  day  by  day,  and 
hour  by  hour,  in  the  punctilious  discharge  of  his  worldly 
duties,  but  it  must  have  been  plain  to  the  attentive  ob- 
server, that  all  his  serious  thoughts  were  fixed  on  heaven. 

To  sufferings  like  these,  it  might  be  supposed  no 
aggravation  could  be  added ;  but  in  order  that  you  may 
appreciate  the  entire  scope  of  his  fortitude,  truth  com- 
mands me  to  relate — and  why  should  we  shrink  from 
the  most  splendid  moral  passage  in  his  history — that, 
in  the  vicissitudes  of  life,  his  large  and  princely  foi- 


WILLIAM    RAWLE,   L.  L.  D. 

tune  had  been  utterly  swallowed  up.  He  looked  upon 
this,  also,  not  merely  with  the  eyes  of  a  philosopher, 
but  of  a  Christian.  Thus,  the  ties  of  this  world  were 
severed,  one  by  one,  and  at  the  age  of  seventy  years, 
he  threw  his  eyes  back  upon  the  ocean  of  life,  to  rest 
only  upon  the  wreck  and  ruin  of  all  that  could  render 
life  most  dear ;  but  how  glorious  must  have  been  the 
relief,  when,  withdrawing  his  view  from  the  vanity 
of  all  terrestrial  things,  he  placed  it  upon  the  inex- 
haustible treasures  of  the  world  to  come. 

To  sum  up  this  hasty  and  imperfect  outline  of  the 
virtues  and  afflictions  of  the  departed,  we  cannot  do 
better,  than  refer  to  the  following  beautiful  and  pathetic 
stanzas,  contained  in  the  last  of  his  series  of  journals, 
and  which  are  expressly  introduced  by  him,  as  appli- 
cable to  himself.  From  having  been  adopted  to  convey 
his  own  impressions  of  his  career  in  life,  they  possess 
all  the  interest  of  original  views,  and  are  therefore 
strongly  recommended  to  our  attention  and  regard : 


"  I  know  not,  and  I  care  not  how 
The  hours  may  pass  me  by, 
Tho'  each  may  leave  upon  my  brow, 
A  furrow  as  they  fly. 

"  What  matters  it — each  still  shall  take 
One  link  from  off  the  chain, 
Which  binds  me  to  this  grievous  stake 
Of  sorrow  and  of  pain. 


520  THK  FORUM. 

"  Time,  like  a  rower,  plies  his  oar, 
And  all  his  strokes  are  hours, 
Impelling  to  a  better  shore 
Of  sunshine  and  of  flowers. 

"  I've  tasted  all  that  life  can  give 
Of  pleasure  and  of  pain, 
And  is  it  living,  thus  to  live 
When  joys  no  more  remain  ? 

"  All  nature  has  had  charms  for  me, 
The  sunshine  and  the  shade, 
The  soaring  lark,  the  roving  bee, 
The  mountain  and  the  glade. 

"  I've  played  with  being,  as  a  toy, 
'Till  things  have  lost  their  form  ; 
'Till  danger  has  become  a  joy, 
And  joy  become  a  storm. 

"  I've  loved  as  man  has  seldom  loved, 
So  deeply,  purely,  well ; 
I've  proved  what  man  has  seldom  proved, 
Since  first  from  bliss  he  fell. 

"  Mine  eye  again  can  never  see, 
What  once  mine  eye  has  seen ; 
This  world  to  me,  can  never  be 
What  once  this  world  has  been. 

"Speed  then,  Oh  speed — my  bark  speed  on, 
Quick  o'er  life's  troubled  waves, 
The  one  that  comes — the  one  that's  gone, 
What  is  beneath  them  ? — GRAVES." 

%-  -'.*•'' 

Ever  bland,  courteous  and  conciliating,  his  placid 
brow  gave   no  denotement  to  the  idle  and   curious 


WILLIAM    RAWLE,    L.L.D.  521 

world,  of  those  deep  furrows  which  misfortune  had 
ploughed  in  his  heart.  Alike,  unostentatious  of  joy 
and  of  grief,  he  never  stimulated  envy  by  the  exhibi- 
tion of  the  one,  nor  invited  commiseration  by  mani- 
festing the  other.  Like  the  diamond,  he  grew  brighter 
the  harder  he  was  rubbed — like  the  sun,  he  shone  with 
sublimer  lustre,  while  surrounded  by  the  horrors  of  an 
elemental  war.  What  sight  more  noble,  than  to  behold 
a  man  thus  struggling  boldly  with  adversity,  contest- 
ing the  ground  inch  by  inch,  and  when  at  last  com- 
pelled to  submit  to  his  relentless  adversary — if  com- 
pelled to  submit — bearing  with  him  the  consciousness 
that  he  had  employed  all  the  powers  he  possessed 
against  the  ills  of  life,  or  at  all  events,  never  turned 
traitor  to  himself,  or  deserted  his  post. 

There  is  but  one  situation  in  life  superior  to  that 
of  a  rich  man  generously  appropriating  his  wealth  to 
the  melioration  of  the  afflictions  of  the  poor  and  the 
wretched — and  that  is  the  condition  of  the  unfortu- 
nate man,  who  tramples  upon  the  toils  and  contemns 
the  vicissitudes  of  this  life,  except  so  far  as  they  may 
be  considered  preparatory  to  the  enjoyments  of  life  to 
come. 

Would  you  see  a  really  great  man  in  his  true  glory, 
look  not  for  him  on  the  pinnacle  of  fortune,  with  the 
world  at  his  feet,  and  the  very  heavens  apparently 
almost  within  his  grasp !  but  behold  him  standing 
alone,  in  sad  and  solitary  grandeur,  amidst  the  wreck 

VOL.  i. — 34 


522  THE  FORUM. 

and  ruin  of  all  his  earthly  hopes,  with  his  breast  opened 
to  the  pelting  of  the  pitiless  storm,  his  foot  planted 
upon  the  grave,  as  the  only  refuge  from  his  suffering, 
and  his  eye  firmly  fixed  upon  eternity,  as  his  final  and 
assured  reward.  Upon  the  struggle  of  such  a  man, 
even  angels  may  be  said  to  look  down  with  wonder, 
and  rejoice  in  the  anticipations  of  the  "just  made  per- 
fect." 

"  Sweet  are  the  uses  of  adversity." 

No  man  can  fully  appreciate  his  own  nature,  without 
having  known  the  vicissitudes  of  life.  The  lesson  of 
sympathy,  when  taught  through  our  own  selfishness, 
is  thoroughly  taught,  and  rarely  forgotten.  The  com- 
miseration which  the  prosperous  profess,  and  some- 
times really  appear  to  feel,  for  the  unhappy,  is  lovely 
in  the  sight  of  men  and  angels ;  but  it  differs  as  much 
from  the  true  principles  of  benevolence,  as  morality 
differs  from  religion.  The  whole  system  of  morals  is 
embraced  by  religion,  but  the  converse  of  this  propo- 
sition is  not  true.  Religion  is  not  necessarily  embraced 
even  by  the  most  perfect  morality ;  so,  that  charity 
which  we  extend  towards  the  wretched,  becoming,  as 
it  always  is,  is  often  compounded  of  influences,  all 
working  out  qualified  good  to  our  fellow  men,  but  none 
seated  or  rooted  in  the  heart.  To  resort  to  a  simple 
illustration — a  regular  and  formal  attendance  at  Divine 


WILLIAM    RAWLE,    L.L.D.  523 

worship  is  highly  moral,  and  exhibits  the  most  salu- 
tary and  commendable  example,  and  imparts  no  incon- 
siderable advantages  to  the  community  in  which  we 
live;  but  to  ourselves  the  benefit  of  this  external 
homage  is  less  than  nothing,  unless  it  be  accompanied 
by  spiritual  devotion.  That  man  who  himself  has  suf- 
fered, and  suffered  deeply,  feels  the  full  sense  of  hu- 
man obligation;  he  does  not  merely  shake  his  superflux 
to  the  victim  of  indigence,  but  he  warms  him  into  re- 
newed life  and  hope,  by  the  genial  influence  of  a  sym- 
pathetic heart.  He  does  unto  others  as  he  would  be 
done  by — and  he  does  it,  too,  not  for  this  world  only, 
but  with  reference  to  his  duty  towards  heaven.  Such 
was  his  charity. 

In  September,  1827,  he  received  the  degree  of  Doc- 
tor of  Laws  from  Princeton  College,  and  in  the  follow- 
ing year,  a  similar  degree  was  conferred  upon  him  by 
Dartmouth  University,  and  a  short  time  before  his 
death  he  was  applied  to  by  the  last  named  institu- 
tion, for  a  third  edition  of  his  valuable  work  upon 
Constitutional  Law,  which  had  been  adopted  as  a 
text  book,  in  many  of  the  institutions  of  learning  in 
the  United  States.  At  the  time  of  this  application, 
however,  his  mind  was  no  longer  with  this  world,  but 
in  close  communion  with  its  Maker :  the  proposal, 
therefore,  was  declined. 

For  many,  many  years  of  his  life,  as  has   been 
said,  he  had  drunk  deeply  from  the  springs  of  gene- 


524  THE  FORUM. 

ral  literature  and  science;  but  as  he  approached  the 
fount  of  eternal  light  and  love,  all  other  enjoyments 
became  comparatively  insipid,  and  within  the  last  year 
of  his  life,  while  sitting  by  his  bedside — knowing  his 
fondness  for  books — I  inquired,  whether  there  was 
any  thing  I  could  supply  him  with,  from  the  limited 
stores  of  my  library?  "Yes,"  replied  he,  "any  books 
you  may  have  upon  the  subject  of  religion  will  be 
most  welcome  to  me,  as  preparatory  to  the  great 
change  that  rapidly  approaches.  General  reading  is 
adapted  only  to  general  objects — my  attention  is  now 
directed  solely  to  one,  and  that  is,  'to  make  my  calling 
and  election  sure.'"  This  was  not  uttered  in  the 
way  of  repining  at  the  idea  of  approaching  dissolu- 
tion, or  remorse  for  former  misappropriation  of  time, 
but  in  the  meekness  and  firmness  of  a  Christian  ap- 
proaching the  judgment-seat  of  his  God.  He  seemed 
neither  to  seek  nor  shun  his  fate,  considering  both 
equally  reprehensible ;  but  awaited,  with  apparent  and 
most  admirable  composure,  that  awful  mandate  which 
should  summon  him  from  time  to  eternity — from  cor- 
ruption to  glory — from  among  mortals  to  his  kindred 
saints. 

In  the  last  of  his  journals,  in  a  treatise  upon  life,  he 
introduces  the  only  passage  which  we  have  been  able 
to  find,  indicating  a  desire  of  a  change  of  condition : 

"  Is  it  lawful,"  says  he,  "  to  wish  for  death — merely  to  wish — 


WILLIAM    RAWLE,    L.L.D.  525 

without  doing  anything  to  accelerate  it  ?  Such  wishes  may  pro- 
ceed rather  from  the  pressure  of  affliction,  from  a  sense  of  the 
vanities  of  the  world,  or  from  an  earnest  desire  to  partake,  as  soon 
as  possible,  of  the  joys  of  immortality.  The  two  latter  form  my 
case.  There  is  very  little  indeed  to  bind  me  to  this  world — nothing 
except  my  beloved  children.  To  them  my  departure,  whenever  it 
may  happen,  will  no  doubt  be  cause  of  grief;  but  time  assuages 
sorrow,  and  in  a  little  while  the  memory  of  me  will  perhaps  be  a 
pleasing  melancholy,  succeeding  to  the  first  violent  emotions.  For 
my  transition,  I  hope  I  am  not  wholly  unprepared.  I  endeavor 
every  day  to  increase  my  readiness  to  go.  Thou,  0  God  !  knowest 
how  often  I  think  of  thee,  how  often  I  pray  thee  to  increase  my 
love  for  thee,  and  to  enable  me  to  steer  clear  of  giving  thee  offence. 
Adieu,  then,  my  earthly  friends !  adieu,  my  beloved  children  ! 
Weep  not  for  me  !" 

Throw  the  mind  back  upon  the  brightest  pages  of 
the  history  of  man — to  Themistocles,  to  Hannibal,  or  to 
those  who  "played  the  Roman  fool,  and  died  on  their 
own  swords."  Looking  at  those  illustrious  models, 
through  the  dense  and  misty  medium  of  centuries,  and 
the  flattering  glass  of  eulogy,  they  strike  the  view  as 
the  ruins  of  the  noblest  men  that  ever  lived  in  the  tide 
of  time.  But  strip  them  of  their  adventitious  glory ; 
contemplate  them  as  they  really  were,  and  tell  us,  if 
you  can,  wherein  they  excel — in  prosperity,  or  adver- 
sity— in  morals,  or  in  intellect — in  virtue,  or  in  philo- 
sophy— in  private,  or  in  public  life — this  lamented 
citizen  of  the  American  Republic. 

It  is  ever  the  disposition  of  men — and  perhaps  it  is 


526  THE  FORUM. 

mainly  attributable  to  the  course  of  early  education — to 
look  for  their  examples  to  those  remote  periods,  which 
exhibit  the  virtues  of  their  heroes,  their  statesmen,  and 
their  scholars,  without  depicting  their  faults.  Nor  is 
it  objectionable  that  it  should  be  so.  Impressions  con- 
veyed to  the  youthful  mind,  through  this  somewhat 
illusory  medium,  are  calculated  to  create  an  exalted 
standard  of  human  nature,  and  to  inspire  the  soul  with 
that  spirit  of  emulation,  which  would  seldom  be  pro- 
duced by  living  or  modern  examples.  Yet,  neverthe- 
less, let  us  not  strip  the  well  earned  laurel  from  the 
new  made  grave,  to  bedeck  the  ancient  monuments  of 
the  mighty  dead.  Single  out  from  the  most  resplend- 
ent pages  of  classic  story,  the  proudest  models  of  human 
excellence ;  trace  them  through  the  fluctuations  of  time ; 
mark  them  in  the  hour  of  prosperity ;  test  them  by  the 
touchstone  of  adversity ;  contemplate  them  in  a  strug- 
gle with  the  grave — where  then  is  their  philosophy — 
where  then  their  glory  ? 

"  To  live  with  Fame 
The  gods  allow  to  many ;  but  to  die 
With  equal  lustre,  is  a  blessing  Heaven 
Selects  from  all  the  choicest  boons  of  Fate, 
And  with  a  sparing  hand  on  few  bestows." 

In  the  all-trying  hour  of  death,  how  many  heroes 
have  dropped  their  masks,  and  shrunk  to  less  than  men  ? 
Lycurgus,  the  renowned  Spartan  law-giver,  fell  a  time- 


WILLIAM    RAWLE,    L.  L.  D.  527 

less  victim  to  his  own  measureless  vanity.  The  inflexible 
Cato,  in  the  hour  of  disaster  and  distress,  meanly  de- 
serted his  post,  and  rushed,  uncalled  for,  to  the  judg- 
ment seat  of  his  God.  Brutus — the  patriot  Brutus — 
the  magnanimous  deliverer  of  Rome — instead  of  en- 
during misfortune — instead  of  buffeting  the  billows  of 
adversity,  and  riding  out  the  storm,  ingloriously 
plunged  into  the  gulf  of  eternity,  and  converted  his 
own  passions  into  the  evil  genius  of  Philippi.  Such  is 
worldly  philosophy.  Contrast  for  a  moment  its  prac- 
tical results  with  those  of  the  religion  inculcated  by 
the  meek  and  lowly  Saviour,  and  practised  by  his  dis- 
ciples and  his  followers.  The  difference  is  this — the 
one  is  the  offspring  of  this  world  alone,  and  dies  in  the 
death  of  the  objects  that  inspired  it.  The  other  is  hea- 
ven-descended and  heaven-protected.  Its  source,  and 
duration,  and  reward,  are  eternal.  The  Christian  lives 
in  this  world,  but  not  for  this  world ;  and  he  dies  as 
he  lives,  for  a  world  to  come — patiently  submitting  to 
his  doom,  neither  hastening  or  shunning  it ;  but  like  a 
faithful  sentinel,  unmurmuringly  awaiting  the  order  of 
his  great  commander,  "  Who  wills  to  do,  or  to  undo,  in 
his  own  good  pleasure." 

For  upwards  of  a  year  before  his  translation  to  more 
kindred  and  congenial  climes,  while  chiefly  confined  to 
that  bed,  which  proved  to  be  the  bed  of  death,  it  was 
my  privilege  to  have  frequent  opportunities  of  seeing 
and  conversing  with  him.  What  a  solemn  and  sublime 


528  THE    FORUM. 

sight !  His  whole  soul  had  become  concentrated  and 
fixed  on  things  ahove,  "  and,  growing  purer  as  it  looked 
towards  Heaven,  was  fashioned  to  its  journey."  He 
passed  from  works  to  reward,  on  the  twelfth  day  of 
April,  1836. 

"  Night  dews  fall  not  more  gently  on  the  ground, 
Nor  weary,  worn-out  winds  expire  so  soft." 


CHAPTER  XIII. 

ALEXANDER  JAMES  DALLAS,  L.L.D. 

BORN,  JUNE  21,  1759— DIED,  JANUARY  16,  1817. 

ALEXANDER  JAMES  DALLAS  was  a  native  of  Jamaica, 
(Barbadoes.)  Born  on  the  21st  of  June,  1759.  He 
received  the  rudiments  of  his  education  at  Edinburg, 
and  afterwards  entered  Westminster  school,  and  became 
a  pupil  of  Elphenstone,  well  known  from  his  translation 
of  the  Mottos  to  Johnson's  "  Rambler,"  and  other  peri- 
odical essays. 

Mr.  Dallas's  father,  Robert  Dallas,  was  from  Scot- 
land, and  rapidly  became  a  very  eminent  and  wealthy 
physician. 

In  1780,  the  son  married  a  lady  of  Devonshire,  Eng- 
land, and  in  1781,  shortly  after  the  death  of  his  father, 
accompanied  by  his  wife,  he  left  England  for  Jamaica. 
Upon  nis  arrival,  it  was  found  that  the  father's  large 
property  had  been  left  to  the  disposition  of  his  widow, 
who  had  married  again,  thereby  depriving  the  subject 
of  this  memoir  of  all  hopes  of  an  inheritance.  What, 
no  doubt,  was  then  considered  by  him  a  misfortune, 


530  THE  FORUM. 

in  its  results,  probably  proved  to  be  a  blessing — for  it 
threw  him  upon  his  own  energies  and  resources,  and 
contributed  to  make  him,  what  he  finally  became,  one 
of  the  ablest  lawyers  and  most  accomplished  gentle- 
men of  the  Philadelphia  bar. 

In  disappointment,  though  not  in  despair,  he  left 
Jamaica  in  the  month  of  April,  1783,  and  arrived  in 
Philadelphia  on  the  15th  of  June  in  the  same  year. 
This  voyage  was  made  principally  for  the  benefit  of  his 
wife's  health,  and  with  a  view  merely  to  a  temporary  resi- 
dence in  the  United  States.  He,  in  a  short  time,  how- 
ever, became  enamoured  of  our  republican  institutions, 
and  with  all  his  heart,  adopted  the  land  of  liberty  as 
his  permanent  abode.  Three  days  after  his  arrival,  on 
the  17th  of  June,  he  took  the  oath  of  allegiance  to  the 
State  of  Pennsylvania,  and  ever  afterwards  resided  in 
Philadelphia,  except  while  acting  at  Washington  as 
Secretary  of  the  Treasury. 

From  the  time  of  his  arrival,  he  was  assiduously  en- 
gaged in  preparing  himself  for  admission  to  the  bar, 
and,  the  third  day  of  August,  1785,  was  admitted  to 
practice  in  the  Supreme  Court  of  Pennsylvania,  and, 
in  a  short  time,  gradually  became  a  practitioner  in  all 
the  Courts  of  the  United  States. 

His  practice  at  this  early  period,  of  course,  not  being 
extensive,  he  prepared  his  Reports*  for  the  press,  and, 

*  Reports  of  Decisions  of  the  United  States  Circuit  Court,  and  Supreme 
Court  of  Pennsylvania. 


ALEXANDER  JAMES  DALLAS,  L.L.D. 

possessing  the  highest  literary  taste,  also  contributed 
largely  to  the  literary  magazines  of  the  day. 

On  the  18th  of  January,  1791,  he  was  appointed 
Secretary  of  the  Commonwealth  of  Pennsylvania,  by 
Governor  Mifflin,  a  man  for  whom  he  always  enter- 
tained the  highest  regard,  and  out  of  respect  and  friend- 
ship for  whom,  he  gave  to  his  son,  the  present  Minister 
to  England,  the  name  of  George  Mifflin. 

Thus  brought  into  early  and  favourable  notice,  other 
honorable  testimonials  were  conferred  upon  him.  He 
became  a  member  of  the  Philadelphia  Society,  the  St. 
George's  Society,  and,  in  1794,  a  trustee  of  the  Uni- 
versity of  Pennsylvania,  of  which,  at  that  time,  the 
Reverend  Dr.  Rogers  was  the  provost;  and,  it  was 
generally  known,  that  the  discourse  delivered  by  the 
reverend  provost  upon  his  installation,  and  which  was 
considered  a  masterpiece  of  its  kind,  was  the  produc- 
tion of  Alexander  James  Dallas. 

In  September,  1793,  his  commission  as  secretary 
was  renewed;  and,  not  long  after,  he  became  pay- 
master-general of  the  forces  engaged  against  the  insur- 
rectionists, and  accompanied  the  expedition  to  Pitts- 
burg.  Upon  this  service  he  was  eminently  useful,  and 
received  the  highest  approval  of  Washington. 

In  December,  1796,  the  trust  of  secretary  was  again 
confided  to  him.  This  intimate  connection  with  the 
executive  for  so  long  a  period,  imparted  to  him  a  know- 
ledge of  men  and  public  officers  of  the  state,  which  few 


532  THE  FORUM. 

ever  enjoyed.  While  holding  this  office,  he  published 
a  valuable  edition  of  the  laws  of  the  commonwealth, 
accompanied  with  copious  notes — an  evidence  at  once 
of  great  industry  and  ability. 

In  Blount's  case,  before  the  Senate  of  the  United 
States,  referred  to  in  the  sketch  of  Mr.  Ingersoll,  Mr. 
Dallas,  in  1799,  then  but  fourteen  years  at  the  bar, 
made  an  able  and  eloquent  defence,  of  which  the  fol- 
lowing extracts  furnish  an  imperfect  specimen. 

Mr.  Dallas  proposed  to  establish  two  points  : — 

"1.  That  only  civil  officers  of  the  United  States  are  impeacha- 
ble,  and  that  the  offences,  for  which  an  impeachment  lies,  must  be 
committed  in  the  execution  of  a  public  office. 

"2.  That  a  Senator  is  not  a  public  officer,  impeachable  within 
the  meaning  of  the  constitution ;  and  that,  in  the  present  instance, 
no  crime  or  misdemeanor,  is  charged  to  have  been  committed  by 
William  Blount,  in  the  character  of  a  Senator. 

"  The  necessity  of  discussing  the  first  branch  of  this  proposition 
could  hardly  have  been  anticipated :  but,  as  the  Honorable  Manager 
had  contended,  that  the  constitutional  grant  of  a  power  to  institute 
and  to  try  impeachment,  extends,  ex  vi  termini,  and  to  every  descrip- 
tion of  offender,  and  to  every  degree  of  offence,  a  just  respect  for 
the  high  authority  which  he  represents,  as  well  as  for  the  talents 
which  he  has  displayed,  compelled  the  defendant's  counsel  to  follow 
him  into  the  wide  field  of  controversy,  that  he  has  unexpectedly 
chosen.  A  claim  of  jurisdiction  so  unlimited,  embracing  every 
object  of  the  penal  code,  annihilating  all  discrimination  between 
civil  and  military  cases,  and  overthrowing  the  boundaries  of  Fede- 
ral and  State  authority,  ought,  surely,  to  have  been  supported  by 
an  express  and  unequivocal  delegation :  but,  behold,  it  rests  en- 


ALEXANDER  JAMES  DALLAS,  L.L.D.     533 

tirely  on  an  arbitrary  implication,  from  the  use  of  a  single  word  j 
and  while  the  stream  is  thus  copious,  thus  inundating,  the  source 
is  enveloped  (like  the  sources  of  the  Nile)  in  mystery  and  doubt. 

"The  Constitution  declares,  that  'the  House  of  Representatives 
shall  have  the  sole  power  of  impeachment ;'  and  that  ( the  Senate 
shall  have  the  sole  power  to  try  all  impeachments :'  Hence,  it  has 
been  urged,  that  as  there  is  no  description  of  the  offenders  or 
the  offences,  in  the  Constitution  itself,  where  the  power  is  vested, 
every  offender  and  every  offence,  impeachable  according  to  the 
common  law  of  England,  must  be  deemed  impeachable  here ;  and 
it  is  alleged  that  the  common  law  power  of  impeachment  extends 
to  every  crime  or  misdemeanor  that  can  be  committed  by  any  sub- 
ject in,  or  out  of  office.  But  Mr.  Dallas  insisted,  that  this  doctrine  is 
contrary  to  the  principles  of  our  Federal  compact ;  that  it  is  contrary 
to  the  general  policy  of  the  law  of  impeachments,  and  that  it  is  also 
contrary  to  a  fair  construction  of  the  very  terms  of  the  Constitution. 

"  That  the  doctrine  is  contrary  to  our  Federal  compact,  he  de- 
duced from  the  design  with  which  the  government  of  the  United 
States  was  established  :  For,  although  it  is  in  some  of  its  features 
federal,  in  others  it  is  consolidated;  in  some  of  its  operations  it 
affects  the  people,  as  individuals ;  in  others  it  applies  to  them  in 
the  aggregate,  as  States ;  yet,  in  every  view,  all  the  powers  and 
attributes  of  the  national  government,  are  matter  of  express  and 
positive  grant  and  transfer;  whatever  is  not  expressly  granted  and 
transferred,  must  be  deemed  to  remain  with  the  people,  or  with  the 
respective  States ;  and  as  the  motive  for  establishing  the  Federal 
Constitution  arose  from  the  want  of  a  competent  national  authority, 
in  cases  in  which  it  was  essential  for  the  people  inhabiting  the 
different  States  to  act  as  a  nation,  so  far  the  people  gave  power  to 
the  Federal  Government :  but  the  delegation  of  that  power  is  evi- 
dently limited  by  the  reason  which  produced  it.  Thus,  in  the 
creation  of  a  national  judiciary,  we  find  that  in  criminal,  as  well  as 
civil  cases,  no  authority  is  vested  in  the  courts,  but  upon  the  ap- 


534  THE  FORUM. 

propriate  subjects  of  national  jurisprudence.  Constitution,  Art.  1, 
§  1,  Art.  3.  Crimes  and  misdemeanors,  which  have  no  connection 
with  national  objects,  are  left  to  be  prosecuted  and  punished  under 
the  laws  of  the  State  in  which  they  are  committed ;  and  yet  it  is 
asserted,  that  for  any  crime  or  misdemeanor,  which  could  only  be 
thus  the  object  of  State  jurisdiction,  which  could  not  be  tried  upon 
an  indictment  in  any  federal  court,  a  State  officer,  or  a  private 
citizen,  may  be  impeached  before  the  Senate  of  the  United  States ! 
The  mere  investment  of  a  power  to  impeach,  and  to  try  impeach- 
ment, is  considered  as  an  instrument  destined  to  carry  the  govern- 
ment beyond  its  natural  sphere,  and  to  give  to  the  censorship  of 
the  Senate,  a  scope  and  efficacy,  of  which  the  general  judicial  au- 
thority of  the  Union  does  not  partake. 

"But  the  Honorable  Manager  having  referred  to  the  English 
common  law,  for  an  exposition  of  the  import  and  operation  of  the 
power  of  impeachment,  Mr.  Dallas  contended,  that  the  United 
States,  as  a  federal  government,  had  no  common  law,  in  relation  to 
crimes  and  punishments,  and  cited  the  opinion  of  a  judge  of  the 
United  States  on  the  subject. 

"The  crimes  punishable  under  the  authority  of  the  United 
States,  can  only  be  such  as  the  Constitution  defines,  or  acts  of  Con- 
gress shall  create,  in  order  to  effectuate  the  general  powers  of  the 
government.  How,  he  asked,  did  the  government  of  the  United 
States  acquire  a  common  law  jurisdiction  in  the  case  of  crimes,  and 
by  what  standard  is  the  jurisdiction  to  be  regulated  ?  When  the 
colonies  of  America  were  first  settled,  each  colony  brought  with  it 
as  much  of  the  common  law  as  was  applicable  to  its  circumstances 
and  it  chose  to  adopt;  but  no  colony  adopted  all  the  common  law 
of  England,  and  there  was  a  great  diversity,  owing  to  local  and 
other  circumstances,  in  the  objects  and  extent  of  the  common  law, 
which  the  different  colonies  adopted.  The  common  law  is,  there- 
fore, the  law  of  each  State,  so  far  as  each  State  has  chosen  to  adopt 
it;  but  the  United  States  did  not  bring  the  common  law  with 


ALEXANDER  JAMES  DALLAS,  L.L.D.     535 

them ;  there  are  no  express  words  of  adoption  in  the  Constitution ; 
and  if  a  common  law  is  to  be  assumed  by  implication,  is  it  to  be  the 
common  law  of  the  individual  States,  and  of  which  State  ?  Or  is 
it  to  be  the  common  law  of  England — and  at  what  period  ?  Are 
we  to  take  it  from  the  dark  and  barbarous  ages  of  the  common 
law,  with  all  the  feudal  rigor  and  appendages,  or  is  it  to  be  taken  as 
it  has  been  ameliorated  by  the  refinement  of  modern  legislation  ? 
Would  it  not  be  absurd  to  refer  us  to  the  ancient  common  law  of 
England  ?  And  if  we  are  referred  to  it,  in  its  improved  state,  do 
we  not  rather  adopt  the  statutes,  than  the  common  law  of  that 
country  ?  And  is  the  common  law  to  fluctuate  forever  here,  as  it 
may  fluctuate  there  ?" 


On  the  election  of  Governor  M'Kean,  in  1799,  Mr. 
Dallas  received  the  commission  of  Secretary,  for  the 
fourth  time.  He  continued  in  this  post  until  the  9th 
of  March,  1801,  when  he  was  appointed  by  Mr.  Jeffer- 
son, Attorney  of  the  United  States,  for  the  Eastern 
District  of  Pennsylvania,  and  of  course  resigned  his 
Secretaryship. 

On  the  26th  of  July,  he  was,  by  Governor  M'Kean, 
made  Recorder  of  the  City  of  Philadelphia,  but  re- 
signed shortly  after ;  the  two  posts,  under  the  laws  of 
Pennsylvania,  being  deemed  incompatible. 

Mr.  Dallas  was  one  of  the  democratic  party,  and  an 
active  and  zealous  politician,  and  so  continued  to  the 
hour  of  his  death,  but  he  still  devoted  himself  to  his 
profession  with  untiring  industry,  and  received  numer- 
ous grateful  testimonials,  in  honor  of  his  professional 


536  THE  FORUM. 

exertions  in  behalf  of  his  party  and  his  clients,  at  the 
bar  and  in  the  legislature. 

In  October,  1814,  he  became  Secretary  of  the  Trea- 
sury of  the  United  States,  and  it  has  rarely  happened, 
that  the  responsibilities  of  all  those  different  situations, 
have  been  more  faithfully,  more  fearlessly,  more  satis- 
factorily, or  more  honorably  fulfilled. 

On  the  13th  of  March,  1815,  he  assumed  the  addi- 
tional trust  of  acting  Secretary  of  War,  in  which  he 
successfully  performed  the  delicate  and  somewhat  in- 
vidious task,  of  reducing  the  army  of  the  United 
States. 

"In  the  month  of  November,  1816,"  says  Judge 
Sergeant,  one  of  his  warmest  friends  and  closest  ad- 
herents, and  himself  a  distinguished  lawyer  and  poli- 
tician : 

"Peace  being  restored, — the  finances  arranged, — the  embarrass- 
ments of  the  country's  medium  daily  diminishing,  and  soon  to  dis- 
appear, under  the  influence  of  the  bank  which  it  had  long  been 
laboring  to  establish;  his  property  insufficient  to  defray  the  ex- 
penses of  his  situation,  with  a  large  family  still  depending  on  him, 
he  resigned  his  honorable  station,  and  returned  to  the  practice  of 
the  law  in  this  city.  Here  he  entered  upon  professional  business, 
with  the  zeal  and  ardor  of  youth.  His  success  was  immense,  and 
his  talents  as  an  advocate,  were  held  in  requisition,  not  only  at 
home,  but  in  almost  every  quarter  of  the  Union." 

But  in  the  midst  of  life  we  are  in  death ;  in  this 


ALEXANDER  JAMES  DALLAS,  L.L.D.     537 

world,  our  only  certain  prospect  is  the  grave.  And 
while  indulging  in  the  fond  hope  of  securing  a  com- 
petency for  his  family,  too  great  exposure  to  cold, 
during  a  great  professional  exertion,  and  one,  too,  in 
which  he  was  subjected  to  most  painful  annoyance,  in 
the  case  of  Sinickson's  Will,  brought  on,  at  Trenton, 
an  attack  of  gout  in  the  stomach,  of  which  he  died  on 
the  16th  of  January,  1817,  a  few  hours  after  reaching 
home. 

Mr.  Dallas  was  a  man  of  the  most  fascinating  and 
courtly  manners,  and  of  the  most  impressive  and  digni- 
fied personal  appearance.  He  dressed  with  great  taste, 
ordinarily  in  a  suit  of  olive  brown,  with  small  clothes, 
and  top  boots.  He  had  an  abundance  of  hair,  which 
he  always  wore  powdered,  and  gathered  into  a  bag  cue. 
In  everything  he  did,  he  was  the  embodiment  of  grace- 
fulness. He  never  lost  sight  of  what  was  due  to  him- 
self or  others.  He  would  have  been  distinguished 
among  thousands  for  his  stately  bearing  and  placidity. 
His  stature  was  considerably  above  the  middle  height; 
well  formed ;  rather  inclined  to  corpulency,  but  not  to 
an  extent  to  impair  the  lightness,  grace,  and  activity 
of  his  motions.  His  voice  was  highly  cultivated,  but 
rather  remarkable  for  its  sweetness  and  refinement 
than  its  scope  or  power.  It  was  not  well  adapted  to 
excited  declamation,  but  was  admirably  fitted  for  per- 
suasion. He  was  a  man  of  great  literary  and  political 
acquirements,  and  an  author  and  a  poet  of  no  mean 

VOL.  i. — 35 


538  THE  FORUM. 

pretensions.  This  probably  led  to  the  erroneous  im- 
pression that  he  was  less  of  a  lawyer  than  some  of  his 
eminent  cotemporaries.  History  informs  us  that  a 
similar  absurd  cry  was  raised  against  Lord  Mansfield, 
"which  gained  countenance,"  says  Lord  Campbell, 
"  only  from  the  envy  of  the  vulgar,  who  are  always 
eager  to  pull  down  those  who  soar  above  them,  to  their 
own  low  level ;  and  in  the  legal  profession,  will  assert 
that,  if  a  man  is  celebrated  for  elegant  accomplishments, 
he  can  have  no  law ;  and  if  he  is  distinguished  as  a 
deep  lawyer,  that  he  can  have  no  elegant  accomplish- 
ments." This  doctrine,  however,  be  it  borne  in  mind, 
is  adopted  chiefly  by  those  who  have  neither  the  one, 
nor  the  other. 

In  his  diversified  and  more  attractive  pursuits,  it 
could  not  be  expected  that  he  should  devote  his  attention 
at  any  time  exclusively  to  the  bar.  Nevertheless,  he 
enjoyed  a  large  practice,  and  always  maintained  his 
post  in  the  first  rank  of  the  profession.  His  multifarious 
avocations  did  not  afford  him  time  to  condense  his 
arguments,  and  his  style,  therefore,  was  often  diffuse, 
and  somewhat  redundant. 

He  was  undoubtedly  less  of  a  jurist  than  some  of 
his  cotemporaries,  but  perhaps  of  more  general  accom- 
plishment than  any  of  them.  If  he  had  not  been  a 
lawyer,  he  would  have  been  a  great  statesman ;  and  if 
he  had  not  been  a  statesman,  he  would  have  been  one 
of  the  greatest  lawyers  of  the  age.  Although  he  be- 


ALEXANDER  JAMES  DALLAS,  L.L.D.     539 

longed  to  the  democracy,  and  was  by  common  consent 
their  leader  in  Pennsylvania,  he  never  descended  from 
his  lofty  standard  of  self-respect,  to  promote  his  own 
political  views,  or  to  secure  the  favor  or  adulation  of 
his  party;  and  it  may  also  be  truly  said,  that  he 
never  allowed  party  antipathy  or  acrimony  to  dis- 
turb the  harmony  of  social  or  professional  intercourse. 
As  nearly  all  the  leading  members  of  the  bar  were 
federalists,  his  position  was  at  times  rendered  un- 
comfortable, if  not  disagreeable,  and  the  very  refine- 
ment of  his  sensibilities,  increased  the  penalties  to 
which  he  was  subjected.  But  even  his  could  not 
deprive  him  of  his  self-reliance,  or  interfere  with  the 
conscientious  and  inflexible  discharge  of  his  duty.  He 
was  always  a  fast  friend,  and  an  honorable  and  liberal 
adversary ;  and  to  his  lasting  credit,  be  it  remembered 
that  no  impediment  thrown  in  his  way,  ever  became 
an  obstacle  to  his  advancement ;  he  either  brushed  it 
from  his  path,  or  surmounted  it  by  the  elevating  power 
of  his  irrepressible  genius. 

In  the  brightest  days  of  Westminster  Hall,  Mr.  Dal- 
las would  have  been  an  object  of  respect  and  admira- 
tion. In  the  proudest  periods  of  parliamentary  glory, 
he  would  have  suffered  nothing  in  comparison  with 
those  lofty  spirits  by  whom  he  would  have  been  sur- 
rounded. He  was,  in  short,  a  thorough  scholar,  a 
sound  lawyer,  a  sagacious  statesman,  an  accomplished 
orator,  and  an  exemplary  gentleman. 


540  THE  FORUM. 

Mr.  Dallas  died  on  the  sixteenth  day  of  January, 
1817,  at  the  age  of  fifty-seven,  having  overcome  more 
difficulties,  and  achieved  more  honors,  than  are  often 
attendant  upon  the  usual  vicissitudes  and  career  of 
life. 

Mr.  Dallas  left  a  widow,  a  most  estimable  lady,  and 
six  children,  three  sons  and  three  daughters.  One  of 
his  sons,  bearing  his  father's  name,  who  became  a  cap- 
tain in  the  navy ;  George  M.  Dallas,  the  present  minister 
to  England,  and  former  Vice  President  of  the  United 
States,  who  has  even  surpassed  his  father's  fame; 
and  Trevanion  B.  Dallas,  a  lawyer  of  eminence,  estab- 
lished at  Pittsburg.  The  first  and  the  last  of  these 
died  some  years  after  their  father,  and  the  only  sur- 
viving son  is  George  Mifflin  Dallas. 

All  the  daughters  of  Mr.  Dallas  are,  we  believe,  still 
living.  The  eldest  married  Richard  Bache,  a  grandson 
of  Dr.  Franklin.  The  second,  William  W.  Wilkins,  a 
distinguished  lawyer  of  Pittsburg,  and  more  recently 
Senator,  Secretary  of  State  for  the  United  States, 
and  Minister  to  Russia.  And  the  third,  Maria,  is 
the  wife  of  Alexander  Campbell,  from  Virginia,  a 
finished  gentleman,  of  fine  literary  taste,  and  for 
many  years  a  resident  of  this  city.  Mr.  St.  George 
Tucker  Campbell,  of  the  Philadelphia  bar,  is  the 
son  of  Mr.  Campbell,  and  the  grandson,  by  the  mo- 
ther's side,  of  Alexander  James  Dallas.  He  has  been 
admitted  to  practice  since  the  sixth  of  February, 


ALEXANDER  JAMES  DALLAS,  L.L.D. 

1835,  and  although  not  yet  forty  years  old,  has  estab- 
lished a  reputation  as  a  lawyer  and  an  advocate,  equal 
to  that  of  any  man  of  his  age  in  the  United  States. 
He  is  a  true  scion  from  the  parent  stock,  and  while  he 
reflects  credit  upon  the  profession  to  which  he  belongs, 
he  contributes  to  perpetuate  the  honors  of  the  family 
from  which  he  sprung. 

Looking  to  the  fortunes  of  Mr.  Dallas  and  his  family, 
it  can  hardly  be  said  that  republics  are  ungrateful,  for 
there  is  scarcely  an  honorable  and  profitable  office  in 
the  country,  within  the  gift  of  the  people,  that  has  not 
been  enjoyed  by,  or  tendered  to  some  of  its  various 
members.  And  it  may  be  further  truly  said,  that  those 
offices  have  been  well  bestowed,  and  their  duties  ably 
and  honorably  fulfilled.* 


*  From  the  difficulty  which  all  must  encounter,  who  may  attempt 
biographical  sketches,  in  obtaining  dates  of  events  necessary  to  be  intro- 
duced, I  have  drawn  in  this  memoir,  from  materials  furnished  by  the  Hon. 
Thomas  Sergeant,  in  an  obituary  notice  of  Mr.  Dallas,  published  in 
March,  1817. 


CHAPTER  XIV. 

SAMPSON    LEVY. 

BORN,  1761— DIED,  DECEMBER  15th,  1831. 

PROFESSIONALLY  connected  with  the  illustrious  men 
to  whom  we  have  briefly  and  imperfectly  alluded,  there 
was  one  who,  with  comparatively  but  little  knowledge 
of  the  principles  of  the  law,  a  very  imperfect  literary 
education,  and  a  mind  of  limited  native  powers,  never- 
theless held  a  highly  respectable  position  among  his 
brethren,  and  by  his  good  nature,  sprightliness,  and  wit, 
and  sometimes  even  by  his  blunders,  contributed  much 
to  the  agreeable  character  of  the  Bar,  and  succeeded 
in  establishing  himself  in  a  lucrative  though  subor- 
dinate practice.  Like  the  light  of  a  picture,  he  relieved 
its  sombre  shades,  and  imparted  life  and  hilarity  to  all 
around.  Always  in  a  good  humor  himself,  he  was  the 
cause  of  good  humor  in  others — and  the  profession 
would  at  any  time  have  better  spared  a  greater  man. 
We  refer  to  the  late  SAMPSON  LEVY.  Having  read  law 
with  his  brother,  Moses  Levy,  he  was  admitted  to  prac- 


SAMPSON    LEVY.  543 

tice  in  the  year  1785,  and  soon  grew  into  great  popular 
favor,  and  for  many  years  must  have  been  in  the  receipt 
of  from  six  to  eight  thousand  dollars  per  annum. 

His  deportment  was  always  kind  and  courteous,  and 
his  manner  of  speaking  was  so  energetic,  and  his  voice  so 
agreeable,  that  the  uninitiated  considered  him,  to  borrow 
a  figure  from  his  name,  the  very  Sampson  of  the  Bar. 

His  off-hand  speeches  were  perfect  gems ;  there  never 
was  any  thing  like  them ;  they  flashed,  sparkled,  and 
corruscated  in  every  direction  but  in  that  of  the  cause ; 
and  sometimes,  even,  from  his  diffusive  and  erratic 
course,  he  would,  when,  of  course,  he  couldn't  help  it, 
touch  for  a  moment,  though  but  for  a  moment,  the  essen- 
tial points  in  controversy.  This  led  Judge  Washington 
once  to  remark,  that  Mr.  Levy  was  the  most  troublesome 
speaker  at  the  bar,  as  in  beating  every  bush,  in  sport- 
ing phrase,  he  sometimes  started  game  which  he  almost 
immediately  left  for  the  Judge  to  hunt  down. 

He  had  abundance  of  language,  but  no  discrimination 
— no  choice — no  adaptation.  He  was  governed  by  im- 
pulse and  not  by  reason ;  and  hence  it  often  happened, 
that  the  greater  his  preparation,  the  worse  his  argu- 
ment. To  him,  all  cases  were  alike  hopeful ;  and  no 
case  was  ever  desperate  until  the  execution  had  issued. 
The  great  secret  of  the  success  of  his  wit,  consisted  in 
this — that  he  apparently  could  not  avoid  it,  and  never 
seemed  to  be  conscious  of  it  until  he  observed  its 
effects  upon  others.  He  was  not  sufficiently  critical 


544  THE  FORUM. 

in  his  knowledge  of  language  to  be  a  punster,  but  I 
would  not  give  one  of  his  blunders  for  fifty  ordinary 
puns — they  were  irresistible.  His  readiness  was  in- 
tuitive ;  his  periods  beautifully  rounded,  but  contain- 
ing most  heterogeneous  and  incomprehensible  matter. 
For  instance,  in  speaking  of  the  testimony  of  a  witness 
whose  evidence  was  contradicted  by  an  entry  in  the 
Bible,  he  exclaimed  in  a  voice  of  thunder,  "  Behold 
here,  gentlemen,  upon  the  record  of  this  holy  volume, 
the  enormity  of  this  man's  offence  stares  you  in  the 
face  with  gigantic  strides." 

Again,  in  conducting  a  case  in  which  he  was  deeply 
interested,  he  pronounced  it  to  be  a  "  hydrant,  sucking 
into  its  destructive  vortex,  all  the  consequences  that  be- 
longed to  it."  These  are  instances  taken  from  thou- 
sands, equally  racy  and  extravagant.  His  practical 
professional  wit  and  acuteness  were  scarcely  less  re- 
markable. A  client  having  been  arrested  and  held  to 
bail  in  the  sum  of  ten  thousand  dollars,  during  the  yel- 
low fever  of  1805,  the  bail  could  not  be  procured,  and 
the  defendant  was  committed.  Mr.  Levy  resorted  to 
every  possible  means  to  relieve  him,  but  in  vain.  At 
length,  he  issued  a  writ  against  the  plaintiff  for  the 
same  amount;  he  could  not  get  bail,  and  was  also  com- 
mitted. Upon  being  asked  by  the  adverse  counsel 
why  this  was  done  ?  he  replied,  it  was  the  only  way 
of  securing  sympathy  with  the  original  defendant,  and 
bringing  them  together,  in  order  that  they  might  adjust 


SAMPSON    LEVY.  545 

their  dispute — and  it  so  turned  out ;  for  the  creditor, 
in  order  to  get  out  himself,  consented  to  allow  his 
debtor  to  he  liberated  without  bail.  At  another  time, 
he  was  opposed  to  Mr.  Alexander  James  Dallas,  in  a 
marine  case  of  some  account,  but  in  which  Mr.  Levy, 
in  common  phrase,  "hadn't  a  foot  to  stand  upon." 
After  a  very  able  and  conclusive  argument  from  Mr. 
Dallas,  the  Court  inquired  of  Mr.  Levy  what  answer 
he  could  give  to  it,  to  which  the  shrewd  and  wily 
lawyer  at  once  replied, — 

"  Mr.  Dallas  is  not  familiar  with  maritime  law,  your  Honor,  and 
he  has  made  some  egregious  mistakes  in  his  views  of  the  case, 
which  I  should  not  like  publicly  to  expose  in  a  crowded  court 
house,  but  if  my  learned  friend  will  allow  me  a  moment's  private 
interview,  I  will  convince  him  of  his  error." 

They  accordingly  withdrew  into  the  consultation 
room,  where  Mr.  Levy  immediately  abandoned  the 
defence,  and  a  decree  passed  against  his  client. 

In  another  case  in  the  same  court,  he  and  the  late 
William  Delany  were  concerned  in  an  angry,  and 
warmly  contested  case,  for  a  seaman's  wages,  in  which 
they  succeeded  in  obtaining  a  decree  for  the  claimant, 
of  three  hundred  dollars.  After  the  case  was  finished, 
Mr.  Levy  requested  his  colleague  and  client  to  walk 
round  to  his  office,  in  order  that  the  money  might  be 
distributed.  When  he  arrived,  placing  his  colleague 


546  THE  FORUM. 

on  one  side  of  the  table  and  himself  on  the  other, 
(while  the  client  was  looking  on,  with  anxious  ex- 
pectation,) Mr.  Levy  taking  from  his  pocket  six  fifty 
dollar  notes,  said — addressing  Mr.  Delany,  and  suiting 
the  action  to  the  word — "  There,  sir,  are  fifty  dollars 
for  you — and  here  are  fifty  dollars  for  me — there  are 
another  fifty  dollars  for  you — and  here  another  fifty 
dollars  for  me."  "  My  Gr — d !"  cried  the  astonished 
client,  "  Mr.  Levy  what  am  I  to  have  ?"  "Why,"  said 
Levy,  "you  have  the  honor  of  the  victory,  which  is 
beyond  all  price." 

In  social  or  convivial  intercourse,  Mr.  Levy  was 
equally  amusing.  Upon  some  festive  occasion  he 
dined  with  the  late  Judge  Tilghman,  who  had  given  a 
dinner  in  honor  of  a  distinguished  literary  personage, 
just  arrived  from  England.  Mr.  Levy  with  many 
others,  was  invited;  he  was  ambitious  of  literary  asso- 
ciation, but  he  was  sensible  that  his  early  opportuni- 
ties of  instruction  had  hardly  qualified  him  to  partici- 
pate in  it.  During  the  dinner,  science,  literature  and 
the  arts  were  extensively  discussed,  and  Mr.  Levy,  con- 
trary to  his  wont,  remained  perfectly  silent.  At  length, 
unable  to  endure  it  any  longer,  he  exclaimed  abruptly 

to  the  guest :  "  Pray,  Mr.  ,  in  your  extensive 

reading — which,  indeed,  seems  to  have  been  almost 
unlimited — have  you  ever  met  with  a  little  book, 
called  '  M'Nally  on  Evidence  ?' " 

Upon  another  and  similar  occasion,  in  a  large  com- 


SAMPSON    LEVY.  547 

pany,  while  the  late  C.  W.  Hare,  who  was  very  eloquent, 
was  attracting  the  attention  of  the  entire  company,  with 
a  learned  dissertation  upon  political  economy,  Levy,  who 
wished  to  put  an  end  to  it,  in  order  that  he  might  have 
some  chance  to  shine,  abruptly  said :  "  Pray,  Brother 
Hare,  have  you  ever  read  Quintillian  ?"  "  Certainly," 
replied  Mr.  Hare.  "Well,"  said  Levy,  "  you  must  have 
forgotten  that  he  tells  us,  I  think,  that  nothing  so  be- 
comes an  orator,  as  occasionally  a  solemn  pause"  This, 
of  course,  terminated  the  speech,  and  restored  the  gene- 
ral conversation. 

We  have  said  that  Mr.  Levy's  education  was  imper- 
fect; but  he  was  nevertheless  always  ambitious  of  the 
society  of  literary  men,  where,  from  his  excellent  man- 
ners, good  temper,  and  merriment,  he  was  ever  welcome. 
At  the  time  to  which  I  now  refer,  say  1810,  Joseph 
Dennie,  Esq.,  well  known  for  his  literary  attainments, 
and  holding  a  high  social  position,  was  the  editor  of 
the  Portfolio,  and  an  author  of  great  merit  and  cele- 
brity. He  was  upon  the  most  intimate  terms  with 
John  Quincy  Adams,  Hopkinson,  the  elder  Meredith, 
and  most  of  the  master  spirits  of  the  time.  Levy  was 
of  course  desirous  of  being  received  into  this  delightful 
circle.  Upon  returning  from  court,  his  servant  handed 
him  a  letter,  which  appeared  to  be  an  invitation  to  dinner 
from  Mr.  Dennie.  Mr.  Levy's  golden  dream  was  out, 
and  on  the  appointed  day,  and  to  the  very  hour,  he 
called  at  Mr.  Dennie's  lodgings,  the  abode  of  the  muses, 


548  THE  FORUM. 

and  inquired  for  his  host.  What  was  his  surprise, 
however,  to  be  informed  that  Mr.  Dennie  was  absent 
from  town,  and  would  not  return  for  some  days.  He 
examined  his  invitation ;  there  could  be  no  mistake  as 
to  day  or  hour,  and  he  left  the  house,  not  only  very 
much  chagrined,  but  seriously  offended. 

He  at  once  betook  himself  to  the  office  of  Mr.  Mere- 
dith, and  there  made  his  complaint,  of  what  he  conceived 
to  amount  to  an  intended  personal  insult.  He  was  a  man 
of  undoubted  spirit,  and  he  declared  he  would  submit  to 
no  such  indignity.  Mr.  Meredith,  who  had  a  high  regard 
for  both  parties,  observed  that  there  must  certainly  be 
some  mistake.  Mr.  Dennie  was  not  a  man  to  indulge 
in  merriment  at  the  expense  of  others,  and  he  was 
certain  Mr.  Levy  would  be  the  last  man  in  the  world 
with  whom  he  would  take  such  a  liberty.  "  Mistake !" 
said  Levy,  much  excited.  "  How  can  there  be  a  mis- 
take? There's  the  letter,  (handing  him  the  letter,) 
and  it  speaks  for  itself."  Mr.  Meredith  read  it,  and 
laughing  heartily,  said,  "  It  is  very  true,  the  letter 
does  speak  for  itself,  but  it  does  not  speak  for  Mr. 
Dennie, — it  is  not  written  in  his  hand,  nor  is  it  signed 
by  him.  It  is  a  letter  of  invitation  from  J.  Dennis, 
the  coroner.  My  dear  Levy,  you  have  been  altogether 
in  an  error."  By  this  time  the  festive  hour  had  long 
passed.  Mr.  Levy  lost  his  dinner,  but  he  recovered 
his  good  humor,  and  joined  in  the  merriment,  which 
his  own  blunder  had  produced. 


SAMPSON    LEVY.  549 

This  anecdote,  although  characteristic  of  Mr.  Levy, 
and  although  it  has  gained  currency,  seems  somewhat 
questionable ;  but  there  is  another,  relating  to  the  same 
personages,  that  may  be  relied  upon  as  veritable,  and 
that  is  not  less  indicative  of  the  peculiarity  of  Mr. 
Levy,  to  which  we  have  referred. 

He  was  invited  upon  one  occasion  to  dine  with  a  dis- 
tinguished member  of  the  bar,  where  it  was  expected  Mr. 
Dennie  would  be  present.  As  was  not  unusual  with  that 
gentl  eman,  he  did  not  make  his  appearance ;  he  was  a 
man  subject  to  all  the  skiey  influences,  and  was  regu- 
lated more  by  the  weather  than  his  engagements.  The 
dinner  was  served,  and  in  the  presence  of  the  whole 
company,  Mr.  Levy  expressed  his  mortification  at  not 
meeting  the  expected  guest — the  literary  leviathan,  as 
he  called  him — observing  at  the  same  time,  "  that  as  he 
hoped  to  enjoy  a  literary  conversation,  he  had  consumed 
all  the  morning  in  reading  and  cramming  himself  with 
Plutarch's  Lives,  in  order  that  he  might  contribute  his 
share  to  the  anticipated  intellectual  treat;  and  now," 
said  he,  "  all  this  labor  and  learning  go  for  nothing."  - 

It  has  been  truly  said  by  Chesterfield,  "  that  no  man 
appears  so  ridiculous  by  any  qualities  he  has,  as  by 
those  he  affects  to  have."  Mr.  Levy's  affectation  of 
literary  eminence  was  most  remarkable.  When  he  gave 
a  party,  or  partook  of  a  party,  he  was  certain  to  pre- 
pare himself  by  conning  over  any  review  or  recent 
publication,  the  subject  of  which  he  was  certain  to 


550  THE  FORUM. 

broach  upon  the  earliest  opportunity,  and  without  much 
regard  for  its  fitness.  This  practice  of  his  was  so  well 
understood,  that  it  contributed  more  to  the  hilarity  of 
convivial  intercourse,  than  if  he  had  displayed  all  the 
wisdom  of  Bacon  or  of  Locke ;  and  it  was  aptly  observ- 
ed of  him,  that  it  mattered  very  little  how  he  tumbled, 
as  he  was  sure  to  alight  upon  his  feet.  He  was  a  great 
favorite  with  the  bar;  and  since  his  death,  the  gap 
he  left  in  its  ranks  remains  unfilled. 

There  are  other  incidents,  more  professional  than 
these.  A  stately-looking  gentleman  called  upon  him, 
with  a  copy  of  a  very  complicated  will,  containing  a 
vast  variety  of  trusts,  and  exhibiting  on  its  face  incon- 
sistencies, which  it  was  difficult,  if  not  impossible  to  re- 
concile. The  gentleman  asked  him  to  examine  it  care- 
fully, and  furnish  him  with  a  distinct  written  opinion  upon 
its  true,  legal  interpretation,  stating  at  the  same  time 
that  he  would  call  in  a  week,  receive  the  result,  and  pay 
him  liberally  for  his  professional  service.  The  moment 
the  client  left  the  office,  Mr.  Levy  turned  to  his  students 
— handed  the  copy  of  the  will  to  them — told  them  it 
would  furnish  them  a  fine  opportunity  for  improvement, 
and  requested  them  to  examine  carefully  the  authorities 
bearing  upon  the  points  in  question;  and  upon  the 
strength  of  a  large  expected  fee,  and  their  attention, 
invited  them  all  to  a  handsome  supper.  The  task  was 
performed — the  supper  was  enjoyed — in  a  few  days 
an  elaborate  opinion  was  prepared — and  at  the  ap- 


SAMPSON    LEVY.  551 

pointed  time,  the  client  called.  Mr.  Levy,  with  no  little 
parade,  read  the  opinion,  consisting  of  many  pages. 
The  gentleman  was  delighted,  and  upon  receiving  it, 
laid  upon  the  table  a  note,  delicately  rolled  up,  exhibit- 
ing at  the  corner,  the  figure  ONE,  and  left  the  office.  As 
soon  as  he  had  gone,  Mr.  Levy  unrolled  the  note,  and 
instead  of  its  being  one  hundred  dollars,  as  he  expected, 
it  proved  to  be  but  one  dollar.  "  There  is,"  said  he, 
"gentlemen,"  addressing  his  students,  "a  great  mis- 
take ;  the  gentleman  has  rolled  up  the  wrong  note ;  he 
no  doubt  intended  to  pay  one  hundred  dollars,  but  he 
has  left  but  one  dollar.  Do  see  if  you  can  find  him, 
and  let  it  be  corrected."  The  students  set  oif  in  every 
direction  in  pursuit,  but  it  proved  unavailing — and 
hence  the  supper — the  research — and  the  opinion — all 
passed  for  a  single  dollar. 

It  afterwards  was  found  out,  that  the  whole  affair  had 
been  contrived  as  a  hoax  by  the  students  themselves ; 
that  the  pretended  will  was  a  fiction  of  their's,  and  that 
the  supposed  client  was  an  impostor. 

About  this  time  Mr.  Levy,  who,  I  have  said,  had 
extensive  practice,  was  called  upon  to  argue  a  case  in 
the  adjoining  State  of  New  Jersey.  It  was  a  matter 
of  considerable  importance.  He  presented  himself  in 
the  County  Court,  at  Woodbury,  and  was  about  to 
open  the  case,  when  the  Court,  with  more  presumption 
than  learning  or  civility,  addressing  him,  said,  "Mr. 
Levy,  we  know  you  personally  and  by  reputation,  but 


552  THE  FORUM. 

our  rules  forbid  any  gentleman  to  practice  in  this  State, 
unless  lie  shall  have  been  formally  admitted."  "  I  beg 
your  pardon,"  said  Mr.  Levy,  "  I  was  not  aware  of  it ; 
but  by  way  of  mending  the  matter,  I  will  ask  some  of 
my  learned  brethren  here  to  move  for  my  admission 
at  once."  "  But  before  any  one  can  move  your  admis- 
sion," said  the  Judge,  "  it  is  necessary  that  you  should 
be  examined  by  the  Court,  that  they  may  satisfy  them- 
selves as  to  your  competency."  "  Certainly,"  said  Mr. 
Levy,  "  by  all  means ;  I  am  perfectly  ready  to  submit 
to  your  rule,  with  one  proviso,  that  seems  to  me  to  be 
perfectly  reasonable,  which  is  this,  that  I  shall  first  be 
allowed  to  examine  the  Court,  in  order  that  I  may 
ascertain,  whether  they  are  competent  to  examine  me" 

He  was  at  one  time  engaged  for  the  notorious  A , 

and  during  a  speech  of  great  force  he  disclaimed  having 
received  any  fee,  and  challenged  greater  attention,  and 
a  more  favorable  consideration  from  the  jury,  on  the 
ground  of  his  candor  and  disinterestedness.  His  client, 
however,  who,  being  often  justly  suspected,  was  him- 
self, of  course,  suspicious,  imagining,  from  the  tone  of 
Mr.  Levy's  argument,  that  he  was  about  abandoning 
the  case,  adroitly  and  secretly  stepped  behind  the 
counsel,  and  put  a  ten  dollar  note  in  his  hand ;  upon 
which  the  advocate,  whose  itching  palm  immediately 
recognized  the  fee,  exclaimed  at  once,  with  scarcely  a 
break  in  the  speech,  "  And  suppose,  gentlemen  of  the 
jury,  I  have  received  a  fee,  is  the  fact  of  a  fair  and 


SAMPSON    LEVY.      .  553 

honorable  compensation  for  my  services,  to  deprive  my 
client  of  his  rights,  or  of  the  benefit  of  my  argument  ?" 

In  another  case  of  considerable  interest,  against  the 
African  Methodist  Church,  the  defendants,  who  were 
generally  black,  happened  to  call  a  white  man  to  testify 
on  their  behalf.  This  furnished  Mr.  Levy  an  oppor- 
tunity for  remarking  in  the  course  of  his  speech,  "  that 
the  defendants  had  craftily  introduced  a  white  witness 
into  the  case,  for  no  other  living  purpose  than  to  give 
a  color  to  the  defence." 

Upon  another  occasion,  a  gentleman  called  upon  him, 
in  a  complicated  matter,  and  having  occupied  the  time 
of  the  counsel  for  some  half  an  hour,  said  to  him,  "  I 
wish  to  know  what  you  would  advise  in  such  circum- 
stances." "Why,  in  such  circumstances,"  said  Mr. 
Levy,  with  great  gravity,  "  I  would  advise  you,  when 
you  go  home,  "  to  put  twenty  dollars  in  your  pocket, 
and  then  call  upon  some  legal  friend  of  yours,  and  give 
him  a  fee,  and  no  doubt  he  will  give  you  an  opinion." 
The  client  took  the  hint,  and  the  affair  was  thus  satis- 
factorily finished. 

Mr.  Baize  Newcomb,  whose  loss  at  the  age  of  seventy- 
seven,  we  have  been  recently  called  upon  to  deplore, 
was  a  sound  lawyer,  but  remarkably  slow  and  sure,  in 
everything  he  said  and  did,  which  led  Mr.  Levy  plea- 
santly to  say  of  him,  "that  he  resembled  a  land  terrapin, 
that  wouldn't  move  unless  you  put  a  coal  of  fire  on  his 
back." 

VOL.  I. — 36 


554  THE  FORUM. 

Upon  an  argument  before  the  Supreme  Court,  Mr. 
Levy  was  citing  a  case  from  the  reports.  While  read- 
ing it,  Chief  Justice  Tilghman  turned  to  him,  in  his 
usual  mild  way,  and  said,  "Mr.  Levy,  you  are  not 
reading  the  opinion  of  the  court,  but  the  argument  of 
counsel."  "I  know  that,"  said  Levy,  "I  read  the 
argument  of  counsel,  may  it  please  your  honor,  because 
it  is  generally  the  best  part  of  a  case." 

"  You  need  not  read  the  book  you  have  cited,"  said 
Judge  Barnes  to  Mr.  Levy.  "  I  know  all  about  it." 
"If,"  said  Levy,  closing  the  book,  "you  know  all  about 
it,  now  tell  me,  if  you  please,  what  it  is,  and  what  use 
I  am  about  to  make  of  it." 

In  his  speeches,  Mr.  Levy  never  considered  anything 
but  simply  getting  through  his  sentences,  utterly  re- 
gardless of  everything  but  making  his  speech.  He  had 
apparently  no  distinct  ideas,  no  -verbal  preparation,  but 
threw  his  words  and  thoughts  together,  like  fragments 
of  glass  in  a  kaleidoscope,  trusting  to  chance  for  their 
combination  and  brilliancy.  A  few  specimens  will 
exemplify  the  truth  of  this  remark  : 


"I  read  this  to  amplify  my  remarks  on  the  court,  to  a 

"  I  stand  upon  strong  ground,  when  I  say  these  two  counts  leave 
the  case  in  the  same  condition  as  below." 

"  The  bond  was  the  personal  security  and  ability  of  the  indivi- 
dual who  gave  it." 

"  I  maintain,  may  it  please  this  honorable  Court,  that  in  every 
well  regulated  society,  justice  is  to  be  dispensed  with  throughout 
the  land." 


SAMPSON    LEVY.  555 

"  The  idea  of  a  purchase,  in  its  fair  and  simple  meaning,  is  the 
right  to  an  article,  of  which  it  forms  the  subject  of  a  contract." 

"  Theories  are  the  shackling,  abstruse  matters,  which  are  as 
different  as  possible  from  the  matter  in  hand." 

"  If  I  were  standing  here  upon  the  act  of  assembly,  as  a  text- 
book, I  think  I  could  satisfy  the  court  of  the  circumstances  of  the 
case." 

"  The  arbitrary  decision  of  the  jury  is  always  supravised  by  the 
controlling  judgment  of  the  court." 

"  These  principles  fix  the  foundation,  upon  which  my  premises 
may  fairly  be  drawn,  to  an  intelligent  court." 

Mr.  Levy  was  of  Jewish  extraction,  but  became  a 
convert  to  the  Christian  faith,  and  a  member  of  the 
Episcopal  church,  early  in  life. 

In  this  faith  he  died,  on  the  15th  of  December,  1831. 

He  was,  it  is  unnecessary  to  repeat,  a  man  of  great 
affability  and  pleasantry,  and  of  infinite  jest  and  humor. 
He  was  of  short  stature,  but  stout  and  well  made  in 
his  person,  and  of  good  features,  and  highly  intelligent 
face.  He  always  dressed  with  the  greatest  neatness, 
and  in  strict  conformity  with  the  fashion  of  those  times. 
At  the  period  of  his  death,  he  was  seventy  years  old, 
but  few  persons  would  have  taken  him  to  be  more  than 
sixty.  He  married  a  most  amiable  and  sensible  woman, 
in  early  life,  who  survived  him  many  years.  Their 
marriage  was  not  blessed  with  children,  but  apparently 
attended  with  great  harmony,  affection,  and  happiness. 

Towards  the  close  of  his  life,  Mr.  Levy's  business 
was  much  diminished,  but  he  lost  none  of  his  alacrity 


556  THE  FORUM. 

or  cheerfulness,  and  retained  all  his  fondness  for  his 
profession  to  the  last  of  his  life.  It  was  a  favorite 
expression  of  his,  at  all  times,  "  that  the  lawyers  were 
the  salt  of  the  earth ;"  and,  certainly,  in  regard  to  him, 
it  may  be  truly  said,  "  the  salt  never  lost  its  savor." 

"  Mori  est  felicis  antequam  mortem  invocet." 


CHAPTER  XV. 

RETROSPECT  AND  PROSPECT. 

IN  taking  leave  of  THE  LIGHTS  OF  THE  LAW,  we  may 
be  allowed  to  observe,  that  the  influence  of  a  body  of 
men,  such  as  those  we  have  glanced  at,  may  be  readily 
conceived.  The  eyes  of  the  Union  were  bent  upon 
them ;  indeed,  during  their  earlier  days,  Philadelphia 
was  considered  in  all  respects  the  centre  and  cynosure 
of  the  Union.  They  were  not  only  illustrious  in 
themselves,  but  they  cast  their  rays  over  the  entire 
State  and  country.  Their  example  sustained  the  weak 
and  strengthened  the  powerful,  encouraged  the  diffi- 
dent and  repressed  the  presumptuous;  nothing  mean, 
crafty,  or  degraded,  could  live  in  their  pure  atmosphere ; 
and  although,  at  all  times,  there  are  to  be  found  men 
connected  with  the  practice  of  the  law,  as  well  as  all  the 
other  sciences,  and,  indeed,  all  worldly  pursuits,  re- 


558  THE  FORUM. 

fleeting  but  little  credit  upon  their  professions  or  voca- 
tions ;  yet  none  such  ever  ventured,  or  at  least  ever 
continued,  within  the  sacred  circle  by  which  these 
Fathers  .of  the  Law  were  self-surrounded.  Yet  never 
were  there  men  more  approachable,  or  more  familiar 
with  those  who,  however  young,  inexperienced,  or 
humble,  gave  promise  of  an  industrious,  zealous,  and 
honorable  career  in  the  profession  of  their  choice.  They 
were,  in  every  sense  of  the  word,  the  Fathers  of  the 
Bar,  and  promoted  the  advancement,  sympathized  with 
the  difficulties,  and  deplored  the  failure  of  their  chil- 
dren. 

They  were  not  only  great  men  in  great  things,  but 
they  observed  all  the  minutest  proprieties  of  a  dis- 
tinguished profession.  We  had  not  then  reached  the 
Fast  Age :  or  the  awkward,  or  careless,  or  indifferent 
age.  No  man  then  sat  with  his  heels  higher  than  his 
head,  or  planted  his  foot  upon  a  chair,  or  occupied  two 
chairs  at  once,  or  threw  his  leg  across  its  back,  or  sup- 
ported himself  by  clinging  to  the  railing,  or  held  long- 
talks  with  the  Court  while  some  important  motion  or 
argument  was  pending,  or  got  up  before  he  was  ready,  or 
sat  down  before  he  had  finished,  or  interrupted  his  adver- 
sary, or  manifested  any  restlessness  or  discomposure. 
If  they  had  been  translated  from  the  court-room  to  the 
most  refined  drawing-room,  their  manners  and  deport- 
ment would  have  required  no  improvement.  They  all 
spoke  to  each  other,  and  of  each  other,  as  accomplished 


RETROSPECT  AND  PROSPECT.       559 

gentlemen,  and  acted  in  accordance  -with  the  title,  and 
in  conformity  with,  its  obligations.  They  wore  no  wigs 
or  gowns  at  this  time,  after  the  fashion  of  Westminster 
Hall,  but  they  carried  "  that  within  which  passed  all 
show." 

They  were  orators  as  well  as  lawyers.  They  did 
not,  it  is  true,  try  a  case  as  hastily  as  we  do  now,  but 
they  tried  it  better  for  themselves,  their  clients,  and 
the  law.  They  never  introduced  any  case  to  the  Court 
or  jury,  without  a  clear  and  formal  opening;  not  that 
this  was  always  indispensable,  but  that  it  became  the 
gravity  and  dignity  of  a  court  of  justice.  There  are 
many  ceremonies  not  necessary  that  are  highly  be- 
coming. 

No  man  ever  knew  them  to  present,  even  a  case  upon 
a  promissory  note,  as  is  the  fashion  now,  thus  : — "  This, 
gentleman  of  the  jury,  is  an  action  upon  a  note  for  five 
thousand  dollars,  brought  by  payee  against  the  maker. 
There's  the  note ;  I'll  call  the  witnesses."  The  wit- 
nesses are  called — the  note  thrust  into  the  jury-box — 
the  Court  hardly  knows  what  is  going  on — and  in  this 
jumble  of  commingled  opening  and  evidence,  the  ver- 
dict is  pronounced.  We  have  sometimes  almost  been  at 
a  loss  to  know,  from  the  bustle,  and  confusion,  and 
hurry  of  the  occasion,  whether  it  was  a  riot  or  a  trial, 
that  was  going  on. 

This,  as  we  have  said,  is  a  melancholy  departure  from 
the  example  of  our  predecessors;  they  were  sometimes 


THE  FORUM. 

in  haste,  but  never  in  a  hurry — never  in  confusion ; 
and  I  may  add,  rarely  in  a  passion.  A  quarrelsome 
man  was  always  avoided  by  them,  if  not  actually  "  put 
into  Coventry ;"  and  a  crafty  adversary,  once  detected, 
was  never  afterwards  trusted.  Cases  were  not  so  nu- 
merous in  these  times,  it  is  true,  as  in  ours,  but  they 
were  generally  much  more  important,  and  involved 
greater  intricacies  and  difficulties.  There  were,  then 
no  American  Reports,  containing  authority  bearing 
upon  the  points  in  question.*  They,  themselves,  may 
be  said  to  have  been  at  once  the  founders  and  expound- 
ers of  American  law,  and  it  is  fortunate  that  we  had 
such  precursors.  If  crude  and  reckless  speeches,  and 
immature  embryo  opinions  had  been  delivered  then,  the 
consequences,  to  the  bar  and  the  country,  in  after  times, 
would  have  been,  indeed,  most  pernicious.  They  laid 
the  foundation  of  the  law,  broad,  and  deep,  and  strong, 
and  all  that  has  been  since  erected  upon  it,  if  it  has  not 
weakened,  has  certainly  not  improved  it.  They  were 
not,  of  course,  case  lawyers ;  they  built  their  know- 
ledge upon  principles,  and  instead  of  drinking  from 

*  Kirby's  Connecticut  Reports  were  published  in  1789,  and  embraced 
cases  between  1785  and  1788,  and  were  the  first  Reports  published  in 
America.  Dallas's  Reports  followed  in  1790,  under  the  imprimatur  of 
Chief  Justice  M'Kean  and  his  Associates,  Allen,  Rush,  Bryan,  and  Ship- 
pen.  There  are  some  decisions  in  the  first  volume  extending  back  as  far 
as  the  year  1759,  but  they  are  mere  fragments,  and  chiefly  valuable  for 
their  antiquity. 


RETROSPECT  AND  PROSPECT. 

the  turbid  and  muddy  waters  running  through  every 
irregular  and  corrupt  channel,  they  slaked  their  thirst 
at  the  pure  fountain  head.  They  seemed  to  look  with 
a  prescient  and  anxious  eye  to  those  who  should  follow 
them,  and  to  whom  they  were  to  transmit  either  lasting 
benefits,  or  cureless  injuries. 

These  great  men  were  always  civil  and  respectful 
to  the  courts,  but  never  servile;  never  unmindful  of 
their  duties  to  themselves  and  their  clients.  And 
when  Mr.  Lewis,  (with  whom  was  associated  Mr.  A. 
J.  Dallas,  in  the  case  of  John  Fries,  who  was  tried 
for  treason,)  publicly  declared,  that  "  his  hand  should 
never  be  contaminated  by  a  pre-judged  opinion  in  a 
capital  case,"  he  did  no  more  than  any  other  distin- 
guished member  of  the  bar  at  that  time  would  have 
done,  even  in  the  presence  of  as  arbitrary  a  judge  as 
ever  sat  upon  the  American  bench. 

The  true  dignity  and  harmony  of  courts  of  justice, 
depend  upon  a  just  observance  of  the  relative  position 
of  court  and  counsel ;  mutual  respect  for  each  other, 
or — if  I  may  say  so — "  taking  and  giving  odor."  I 
have  seen  the  Judges  of  the  Supreme  Court,  in  its 
most  palmy  state,  before  the  hour  of  taking  their  seats, 
engaged  in  a  friendly  and  sprightly  conversation  with 
a  knot  of  the  members  of  the  bar,  upon  the  most 
agreeable,  familiar,  and  equal  terms ;  but  the  moment 
they  assumed  their  places,  conversation  ended,  and  bu- 
siness commenced.  There  was  no  longer  any  famili- 


562  THE  FORUM. 

arity,  .though  always  great  courtesy,  great  kindness, 
and  great  attention. 

Their  demeanor  resembled  that  of  the  Supreme  Court 
at  Washington,  during  the  Chief  Justiceship  of  John 
Marshall.  The  eyes  of  all  the  judges  of  that  great 
tribunal  were  centered  upon  the  speaker,  and  mind 
seemed  to  meet  mind,  through  the  visual  organs,  and 
thereby  to  produce  reciprocal  enlightenment.  How 
dignified  is  such  a  judicial  deportment — how  gratify- 
ing and  encouraging  to  the  advocate — how  impressive 
upon  all  the  beholders.  It  mattered  not  by  whom  the 
court  was  addressed — Mr.  Pinckney,  Mr.  Wirt,  Mr. 
Sergeant,  Mr.  Binney,  Mr.  Webster,  or  Mr.  Ingersoll, 
received  the  same,  and  no  greater  apparent  attention, 
than  any  second  or  third-rate  lawyer,  arguing  his  first 
cause.  If  any  difference  was  manifested,  it  was  rather 
in  favor  of  the  young  and  inexperienced,  or  those  whose 
condition  appealed  to  the  sympathy  of  the  judges,  quite 
as  much  as  to  their  judgment.  We  well  remember  seve- 
ral instances  of  this  kind ;  in  one  of  which  it  was  plain 
that  the  counsel  had  been  worshipping  rather  at  the 
shrine  of  Bacchus,  than  Themis.  Twirling  about,  as 
he  did,  during  the  argument,  (if  it  might  be  called  so,) 
it  was  no  easy  matter  either  to  fix  his  eye,  or  the  basi- 
lisk eye  of  the  Chief  Justice,  nevertheless  it  was  ac- 
complished, and  actually  resulted  in  making  the  speaker 
stand  straight,  and  hi  restoring  him  to  a  state  of  seem- 
ing sobriety.  The  world  may  talk  of  the  dignity  and 


RETROSPECT  AND  PROSPECT.       553 

majesty  of  the  Court  of  King's  Bench,  but  we  hazard 
nothing  in  saying,  that  no  judicial  tribunal  at  home  or 
abroad,  ancient  or  modern,  has  ever  surpassed,  in  these 
respects,  the  Supreme  Court  of  the  United  States. 

But  returning  to  the  Judges  of  our  State  Courts — 
they  neither  flared  up,  nor  blew  out,  nor  interfered  in 
any  way  with  the  legitimate  privileges  of  counsel.  They 
never  jumped  to  a  conclusion  before  the  premises  had 
been  stated,  or  took  the  witness  out  of  the  hands  of 
counsel,  or  told  him  how  many,  or  how  few,  he  was  to 
call,  or  professed  to  understand  his  case  better  than 
himself,  or  thumped  upon  the  bench,  or  wielded  their 
mallet  or  gavel  like  an  auctioneer,  knocking  down  jus- 
tice, or  confounded  themselves  with  the  crier;  and 
bawled  out  order,  or  read  a  newspaper  or  a  pamphlet 
during  the  argument,  or  talked  to  their  subordinates  or 
dependants,  or  fidgeted  and  wriggled  in  their  seats,  as  if 
dissatisfied  with  their  salaries,  or  labors,  or  with  both. 

In  a  word,  at  the  period  referred  to,  the  deportment 
of  the  Bench  and  the  Bar,  were  what  they  always 
should  be,  in  order  to  inspire  the  community  with  pro- 
found respect  and  veneration.  But  while  they  were 
courteous  and  kind  to  all  around,  and  made  no  distinc- 
tions between  their  fellow  citizens,  they  neither  encou- 
raged nor  permitted  improper  freedom  or  familiarity, 
from  any  quarter. 

The  etiquette  of  the  courts  is  quite  as  necessary  to 
be  observed,  as  that  of  society.  It  ought  never  to  be 


564  THE  FORUM. 

permitted,  that  the  whole  community  should  obtrude 
themselves,  at  pleasure,  upon  the  precincts  of  the  bar. 
Strangers,  and  others  than  suitors,  have  no  more  right 
to  usurp  the  appropriate  places  of  others,  than  they 
have  to  enter,  uninvited,  into  the  parlor  of  a  stranger, 
or  to  occupy  the  counting-house  of  a  merchant,  or  the 
pulpit  of  a  clergyman,  to  the  embarrassment  or  inter- 
ruption of  the  proper  occupant  or  incumbent.  In  the 
language  of  Bacon,  "  The  place  of  Justice  is  an  hal- 
lowed place,  and  therefore,  not  only  the  Bench,  but 
the  foot-place  and  precincts,  and  purprise  thereof, 
ought  to  be  preserved  without  scandal  and  corrup- 
tion."* 

In  former  and  better  times,  these  violations  of  deco- 
rum were  not  allowed,  but  now,  if  you  will  look  within 
the  bar,  among  us,  you  can  scarcely  tell  the  clients 
from  the  counsel;  and  that  is  not  the  worst  of  it,  you  will 
find  that  more  than  one-half  of  its  occupants  are  mere 
loiterers,  or  perhaps  loungers,  who  are  influenced  more 
by  curiosity  or  indolence,  than  any  profitable  or  laud- 
able purpose.  In  England,  the  usage  is  entirely  dif- 
ferent. The  enclosure  for  the  bar,  is  not  free  to  the 
entire  community;  it  is  devoted  to  legal  business. 
The  very  apparel  of  the  barristers — their  wigs  and 
gowns — are  significant  of  certain  privileges ;  and  allow- 
ing the  members  of  the  bar,  with  us,  do  not  bear  with 

*  Works  of  Lord  Bacon,  Vol.  I.,  p.  182.    Vide  also,  p.  82. 


RETROSPECT    AND    PROSPECT.  555 

them  the  outward  and  visible  sign,  they  are,  certainly, 
either  known,  or  ought  to  be,  to  the  attendants  upon 
the  court ;  and  if  the  judges  would  make  and  enforce 
an  order  for  the  exclusion  of  interlopers — not  from  the 
court-rooms,  (for  that  cannot  be  done,  and  if  it  could, 
would  not  be  desirable,)  but  from  the  strictly  business 
limits  of  the  profession — it  would  contribute  largely  to 
the  convenience  and  comfort  of  those  who  are  actually 
interested  or  concerned  in  the  cases  upon  trial.  If 
these  suggestions  were  adopted,  much  confusion  would 
be  avoided,  and  legal  operations  would  be  not  only 
facilitated,  but  consequently  accelerated. 

The  annoyance  complained  of,  it  is  true,  is  in  some 
instances  attributable  to  the  wretched  arrangement, 
or  rather  derangement,  of  our  court  rooms.  When 
courts  sit  in  pig-styes,  whatever  may  be  the  inherent 
dignity  of  the  tribunal,  they  will  be  still  subject  to  the 
occasional  encroachments  of  unpleasant  visitors.  But 
even  with  the  present  meagre  accommodations,  greater 
order  might  be  observed ;  in  the  District  and  Circuit 
Courts  of  the  United  States,  it  is  observed.  In  the 
other  courts,  from  the  latitude  that  is  allowed  to  every 
one  to  occupy  a  seat  within  the  railing,  (having  neither 
right  nor  business,  to  excuse  the  encroachment,)  we 
need  hardly  be  astonished,  if  at  last,  some  of  these 
intruders  should  actually  aspire  to  the  judgment-seat, 
itself.  Nay,  we  not  unfrequently,  as  it  is,  see  men 
rushing  boldly  upon  the  Bench,  and  interrupting  the 


566  THE  FORUM. 

judge  during  his  session — many,  it  is  true,  who  know 
no  better ;  but  what  is  required,  is  a  rule  forbidding 
this  privilege  to  ALL,  and  then  none  will  have  a  right  to 
complain.  No  man — certainly,  lawyer  or  layman — 
was  ever  known  in  France  or  England,  so  to  invade 
judicial  sanctity,  unless  by  express  judicial  invitation 
or  permission.  But  it  may  be  said,  there  is  a  vast  dif- 
ference between  a  monarchy  and  a  republic — so  there 
is,  but  JUSTICE  is  ALWAYS  A  MONARCH,  and  her  ministers 
should  partake  of  her  royal  properties,  privileges,  and 
attributes.  It  is  essential  to  the  protection  of  the  com- 
munity that  it  should  be  so,  and  no  one  has  the  right 
to  object  to  that  exercise  of  power,  which  restrains  all 
for  the  benefit  of  all:  "  Degree,  priority,  and  place," 
must  be  observed,  or  nations  and  communities  could 
never  exist : 

"  How  could  communities,  degrees  in  schools,  and  brotherhoods 
In  cities ;  peaceful  commerce,  from  dividable  shores, 
The  primogenitive  and  due  of  birth, 
Prerogative  of  age,  crowns,  sceptres,  laurels, 
But  by  DEGREE,  stand  in  authentic  place  ?r' 

'  4   '  . 

In  the  counties  throughout  the  State,  (contrary  to 
what  might  be  supposed  from  our  example,)  the  divi- 
sion line  between  the  bar  and  audience  is  clearly  un- 
derstood and  regarded,  and  so  it  is  in  most  of  the  cities 
of  the  Union.  Philadelphia,  (the  Athens  of  America,) 
is  a  melancholy  exception.  It  must  not  be  supposed 


RETROSPECT    AND    PROSPECT.  557 

that  these  remarks  have  for  their  object  any  imposi- 
tion of  unreasonable  restraints  upon  suitors,  witnesses, 
or  even  strangers.  On  the  contrary,  the  desire  is 
to  afford  much  greater  convenience  to  all.  On  the 
score  of  utility,  the  benefit  of  the  improvement  sug- 
gested, must  be  obvious.  The  confusion  and  bustle 
that  now  exist  would  be  superseded  by  quiet  and  har- 
mony, and  our  courts  of  law  would  become  what  they 
were  designed  to  be — sacred  temples,  dedicated  to 
Justice — and  enjoying  the  respect  and  reverence  of 
the  people. 

In  thus  noticing  those  who  have  departed  from  among 
us,  passing  from  works  to  rewards,  and  approving  their 
practice,  we  must  not  be  thought  to  disparage  the  exist- 
ing judiciary,  much  less  to  undervalue  the  learning  and 
talents  of  our  brethren  of  the  bar.  When  it  is  in  place 
to  speak  of  them  they  shall  receive  their  full  deserts,  to 
the  best  of  our  humble  ability.  For  the  present,  it  may 
be  enough  to  say,  that  all  their  faults  or  defects  con- 
sist in  manner,  more  than  in  matter,  and  would  seem 
to  spring  from  the  erroneous  modern  notion,  that  he 
who  dispatches  the  most  cases,  is  entitled  to  be  consi- 
dered the  greatest  judge,  or  the  most  accomplished 
lawyer.  "Whereas,  we  are  told,  by  the  wisest  and 
brightest  of  mankind,*  that  "  affected  dispatch,  is  one 
of  the  most  dangerous  things  to  business  that  can  be — 

*  Montague's  Works  of  Lord  Bacon,  Vol.  I.,  p.  83. 


568  THE  FORUM. 

it  is  like  that  which  the  physician  calls  pre-digestion, 
or  hasty  digestion,  which  is  sure  to  fill  the  body  full 
of  crudities,  and  secret  seeds  of  disease ;  therefore, 
measure  not  dispatch  by  the  time  of.  sitting,  but  by 
the  advancement  of  the  business;  and,  as  in  races,  it 
is  not  the  long  stride  or  high  leap  that  makes  the 
speed,  so  in  business,  in  keeping  close  to  the  matter, 
and  not  taking  of  it  too  much  at  once,  procureth  dis- 
patch. It  is  the  case  of  some  only,  to  come  off  speedily 
for  the  time,  or  to  contrive  some  false  periods  of  busi- 
ness, because  they  may  seem  men  of  dispatch ;  but  it 
is  one  thing  to  abbreviate,  by  contracting,  another,  by 
cutting  off.  I  knew  a  wise  man,  who  had  it  for  a  by- 
word, when  he  saw  men  hasten  to  a  conclusion,  i  Stay 
a  little,  that  we  make  an  end  the  sooner.' " 

On  the  score  of  legal  competency,  great  depth  of  learn- 
ing, untiring  industry,  and  unquestionable  fidelity  and 
integrity,  our  judges  and  lawyers  need  not  shrink  from 
a  comparison  with  the  ablest  men  of  this  or  any  other 
State,  or  of  this  or  any  other  time.  But  we  may  be 
allowed  to  observe,  in  all  kindness,  that  it  is  much  easier 
for  great  men  to  incur  small  defects,  than  for  small  men 
to  reach  lofty  virtues.  That  greatness  is  fully  and  freely 
accorded  to  them ;  and  those  defects  which  have  been 
rather  hinted  at  than  spoken  of,  are  equally  theirs. 
THE  EXD  is  NOT  YET  ; — and,  without  pretending  to  be  a 
prophet,  but  judging  simply  from  the  signs  of  the  times, 
a  common  observer  may  fairly  predict,  that  if  the  pre- 


RETROSPECT  AND  PROSPECT.       559 

sent  course  be  pursued,  the  past  glory  of  Pennsylvania 
Jurisprudence,  shall  never  return. 

In  these  reflections  and  predictions,  we  are  aware  that 
there  is  a  point  in  the  life  of  man,  in  which,  generally, 
his  prejudices  seem  to  be  enlisted  for  the  past,  and 
against  the  present.  We  trust  we  have  not  yet  reached 
that  period,  though  we  may  be  self-deceived.  As  hope 
magnifies  the  future,  so  retrospect  magnifies  the  earlier 
scenes  of  life,  in  comparing  them  with  the  present. 
We  are  aware  that  advanced  age,  unconsciously  in- 
fluenced by  the  changes  in  its  own  condition,  im- 
putes the  supposed  changes  in  the  state  of  surrounding 
objects,  to  everything  but  the  true  cause.  "  Sat/  not 
thouy  ivhat  is  the  cause,  that  the  former  days  were  better 
than  these  ?  for  thou  dost  not  inquire  wisely  concerning 
these  things" 

You  scarcely  ever  meet  with  a  retired  septuage- 
narian, who  will  not  tell  you,  that  matters  are  not  now 
as  they  were  formerly, — in  other  words,  that  they  are 
altered  for  the  worse;  whereas  the  change  that  he 
thinks  he  perceives  results,  mainly,  from  the  change 
in  himself,  which  he  does  not  perceive.  His  views 
and  thoughts  at  seventy,  are  widely  different  from 
his  views  and  thoughts  at  twenty.  This  is  because 
the  zeal,  enthusiasm,  companionship,  and  hopes  of 
youth,  have  given  way  to  the  gravity,  suspicion,  soli- 
tude, and  realities  of  age. 

Very  few  men  are  aware  of  the  effects  of  time  upon 
VOL.  i. — 37 


570  THE  FORUM. 

their  mental  faculties.  The  judgment,  suffers  in  the  de- 
terioration of  the  other  functions.  The  mind  takes 
melancholy  rather  than  lively  views  of  passing  events, 
and  recurs  to  earlier  scenes,  actually  similar,  and 
bedecks  them  with  youthful  and  agreeable  fancies, 
and  thence  often  draws  the  erroneous  conclusion,  that 
nothing  present  is  comparable  to  the  past.  This  is 
wisely  ordered  by  Providence — there  being  no  imme- 
diate enjoyment,  and  but  little  in  expectancy — retrospect 
is  substituted  for  hope.  The  difference  which  exists 
is  that,  between  contemplating  the  beauties  of  na- 
ture, under  the  bright  influence  of  the  morning  sun, 
and  the  same  scene  under  the  sombre  shadow  of  a 
gray  twilight ;  or  perhaps  it  may  be  still  more  aptly 
resembled  to  the  difference  between  spring,  which  may 
be  likened  to  the  morning  of  life,  and  the  winter,  where- 
in everything  is  benumbed,  withered,  and  cheerless. 

In  addition  to  this — after  the  gospel  limit,  of  "  three 
score  years  and  ten,"  the  physical  faculties  almost 
always  fail.  And  each  contributing  to  the  imper- 
fection of  the  others,  they  all  decay  together,  and 
gradually  impair  the  action  of  the  mind  upon  exter- 
nal objects  or  passing  events,  as  well  as  the  action 
or  effects  of  external  objects  upon  the  mind.  The  sight 
becomes  dim ;  the  hand  tremulous ;  the  writing  neces- 
sarily becomes  imperfect,  and  the  reading  difficult. 
This,  and  the  defect  of  sight,  are,  mutually,  cause  and 
effect,  acting  and  reacting  upon  each  other.  The 


RETROSPECT    AND   PROSPECT. 

hearing  fails;  the  voice,  no  longer  regulated  by  the 
ear,  loses  its  natural  sweetness  and  intonation;  and 
the  ear,  in  its  turn,  becomes  of  course  less  sensible 
to  its  cadence  and  impression.  The  sense  of  smell  and 
taste  are  so  inseparably  connected,  that  to  impair  either 
impairs  the  other.  The  touch  also  loses  its  sensibi- 
lity, and  thus  all  the  physical  purveyors  of  the  mind 
are  deadened,  and  the  mind  itself  is  obstructed  in  its 
knowledge  and  external  intercourse.  This  is  the  reason 
that,  in  advanced  life,  the  mind,  so  far  from  improving, 
apparently  falls  off  and  recedes  from  its  original  power 
and  activity.  As  long  as  the  physical  functions  are  per- 
fect, the  mind  is  always  perfect. 

Man  may  be  truly  said  to  be  "  a  miracle  to  man." 
In  middle  age,  as  respects  human  experience,  he  knows 
but  half  of  his  own  nature,  for  what  he  knows  leyond 
that,  he  necessarily  relies  upon  others.  Advanced  age 
is  the  best,  for  fulness  of  knowledge,  provided  it  be  not 
attended  with  the  usual  infirmities  of  old  age,  defective 
memory,  or  any  other  intellectual  infirmity  which  might 
unfit  it,  for  imparting  or  deriving  instruction  upon 
the  various  and  devious  affairs  of  life.  A  man  whose 
experience  renders  him  morose  or  misanthropic,  or 
whose  recollection  is  obscured,  sees  everything  that  he 
does  see,  through  himself — a  perverted  medium ;  and 
therefore  never  presents  to  others  a  reliable  account  of 
the  pleasures  or  perils — the  happiness  or  sufferings — 
of  existence. 


572  THB  FORUM. 

We  should  not,  however,  mourn  over  the  frailties 
and  imperfections  of  our  temporal  nature.  It  is  wisely 
ordained  that  "whatever  is,  is  right."  If  we  were 
perfect  here,  there  would  be  little  to  look  for  hereafter. 
We  can't  be  always  young,  and,  thank  Heaven,  we 
can't  be  always  old;  but  we  can  always  endeavor  to 
perform  our  duties^  faithfully,  through  the  shifting 
scenes  and  changes  of  life.  "  Man,"  says  one  of  the 
wisesirphilosophers,  "  may  be  compared  to  the  Indian 
fig-tree,  which,  being  ripened  to  her  full  height,  de- 
clines her  branches  down  to  the  earth,  whereof  she  con- 
ceives again,  and  they  become  roots  in  their  own 
stock."* 

*  Montague's  Works  of  Lord  Bacon,  Vol.  I. 


|irst 


APPENDIX  A. 


ANCIENT  INDICTMENTS,  ETC.,  REFERRED  TO  ON  PAGE  226. 

No.  I. 

"Philadelphia,  the  26th  day  of  the  7th  month,  1702. 
"  We,  the  Grand  Inquest  for  this  Corporation,  do  present  George 
Robinson,  butcher,  for  being  a  parson  of  evill  fame  as  a  common 
swarer,  and  a  common  drunker,  &  particularly  upon  the  twenty- 
third  day  of  this  instant,  for  swaring  three  oths  in  the  market-place, 
&  also  for  utering  two  very  bad  curses  the  twenty-sixth  day  of 
this  instant.  Signed  in  behalf  of  self  &  fellows,  by 

"  JNO.  PONS,*  ferrnan." 
"  Submits,  and  puts  himself  in  mercy  of 
the  Court." 

"  George  Robinson,  fined  xxx  s.  for  the  oaths 
and  curses."f 

*  An  abbreviation  for  Parsons. 

t  The  care  which,  in  early  times,  seems,  from  this  and  other  present- 
ments further  on,  to  have  been  taken  in  the  Province  to  have  the  Third 
Commandment  well  observed,  was  not  continued  by  some  of  the  magis- 
trates of  a  later  date.  We  have  a  presentment,  drawn  January  3d,  1744,  by 
Dr.  Franklin,  in  which  the  Grand  Inquest  "do  present  Samuel  Hassell, 


574  APPENDIX. 


No.  II. 

"Philada.,  the  26th  7  mo.,  1702. 

"  We,  of  the  Grand  Jury  for  the  body  of  this  citty,  do  present 
Grimston  Bond,  &  Margaret  Richardson,  &  David  Jones,  &  Enock 
hubbard,  &  Thomas  Wills,  &  Grace  Townsend,  &  John  hole,  & 
Ann  Jones,  Living  in  William  hewns,  for  selling  strong  drink 
without  Lycence.  Signed  in  behalf  of  the  rest  of  the  Jurors. 

"  JNO.  PSONS,  forman." 

"We,  the  sd  Grand  Jury,  Doe  also  present  Denis  Moore  & 
Edward  Berry,  his  man,  &  Philip  Elbeck,  for  Assaulting  &  fight- 
ing with  one  another  in  the  front  street,  on  the  twenty-third  day 
of  this  Instant  mo.,  about  10  at  night,  to  the  Desturbance  of  the 
neighbourhood,  &  the  breach  of  the  peace.  Signed  in  behalf  of 
the  rest  of  the  jurors,  pr. 

"  JNO.  PSONSS,  forman." 


No.  III. 

"Philadelphia,  ss. 

"  We,  the  Jurors  for  this  city,  doe  present  phillip  Eilbeck,  of 
Chester  County,  for  that  on  the  twenty-third  Day  of  this  Instant, 
at  night,  at  the  house  of  Margaret  Garret,  in  the  front  street,  in 

Esq.  as  a  Magistrate  who  not  only  refused  to  take  notice  of  a  complaint 
made  to  him  against  a  person  guilty  of  profane  swearing,  but  (at  another 
time)  set  an  Evil  Example  by  swearing  himself."  The  passage  was,  ap- 
parently, thought  too  strong,  and  was  struck  out. 


APPENDIX.  575 

Philadelphia,  aforesd,  Did  then  &  theire  mennace  &  threaten  her- 
rnan  Debeck,  by  drawing  his  bagenet  and  making  a  pass  at  him, 
the  said  hernian :  &  at  the  same  time  &  place  abovesaid,  did 
utter  three  curses,  to  the  terrifiding  of  the  said  herman  &  other 
the  Qeen's  Leige  people,  contrary  to  the  laws  in  that  case  made 
&  provided.  Signed  in  behalf  of  the  Rest  of  the  Jurors,  this 
28th  day  <tf  the  7th  mor,  1702,  pr. 

"  JNO.  PSONS,  forman." 
"  Appears  and  submits,  and  puts  himself 
in  mercy  of  the  Court." 

"Eilbeck  for  breach  of  the  peace  and 
curses,  xxx  s." 


No.  IV. 

"Philadelphia,  the  3d  day  of  the  9th  mon.,  1702. 

"  Wee,  the  Grand  Inquest  for  the  body  of  this  city,  do  present 
Thomas  Mattocks,  of  Philadelphia,  Butcher,  for  drunkennes,  & 
particularly  upon  the  twenty-fourth  day  of  the  eighth  moneth  he, 
the  said  Thomas  Mattocks,  was  drunk  in  the  market-place  of  this 
citty.  Sined  in  behalfe  of  the  said  inquest  by 

"  JNO.  PSONS,  ferman." 

"  Wee  also  present  George  Robinson,  of  Philadelphia,  butcher, 
for  uttering  a  grevious  oth  on  the  thirtieth  day  of  the  seventh 
moneth  last,  &  another  oth  the  tenth  day  of  the  eighth  moneth 
last  past,  in  Philadelphia  aforesaid.  Sined  in  behalf  of  the  said 
inquest  by 

"JNO    PSONS,  forman." 
"Submitts.     Whereupon  the  Court  fines    him 

xii  s.  for  the  sd.  oaths,  it  being  the  2nd 

offence,   &  orders  him   to  be   discharged, 

the  Court  paying  his  fees." 


576  APPENDIX. 


No.  V. 

"  The  3d  of  the  12th  mon :  1702. 

"  We  of  the  Grand  Jury  for  the  Citty  of  Philadelphia,  do  psent 
John  Satell  for  passing  of  bad  counterfeit  Coine  to  Anne  Simes,  on 
the  2nd  of  January  Last  past  in  her  husbands  house,  now  Living 
in  Philadelphia,  &  Also  finding  the  mettal  in  his  pocket,  which 
we  think  the  Money  was  made  withall. 

"  Signed  in  behalf  of  the  Rest, 

"ABRA:  HOOPER,  foreman." 

It  is  interesting  to  observe,  that  the  prisoner  being  found  guilty, 
the  record  states  that  "  Mr.  Clark  moves  the  court  that  the  Judg- 
ment may  be  arrested  and  the  Presentment  quashed  for  Incertainty 
and  Insufficiency,  which  was  granted."  A  bal  masqut,  which 
took  place  somewhere  about  the  Christmas  season,  seems,  from  the 
next  indictments,  to  have  been  severely  visited  on  both  guests 
and  host. 


No.  VI. 

"Philadelphia,  the  4th  of  the  12th  mo.,  1702. 

"  We  of  the  Grand  Jury,  do  present  Dorothy,  the  wife  of  Richard 
Cantwill,  of  Philadelphia,  aforesaid,  for  being  maskt  or  disguised 
in  mens  cloathes  walking  &  dancing  in  the  house  of  the  said 
John  Simes,  in  Philadelphia,  contrary  to  the  law  of  this  province, 
at  9  or  10  o'clock  at  night,  on  the  26th  or  28th  day  of  the  10th 
month  last  past. 

"  Signed,  in  behalf  of  the  rest, 

"  ABRA.  HOOPER,  foreman." 


APPENDIX.  577 


No.  VII. 

"The  4  of  ye  12  month,  1702. 

"  We,  ye  Grand  Jury  of  ye  City  of  Philadelphia,  present  Sarah 
Stivee,  wife  of  John  Stivee,  of  this  city,  for  being  dressed  in  man's 
cloathes,  contrary  to  the  nature  of  her  sects,  and  in  such  disguises 
walked  through  the  streets  of  this  city,  &  from  house  to  house, 
on  or  about  the  26th  of  10th  month,  to  the  grate  disturbance  of 
well  minded  persons,  &  incoridging  of  vice  in  this  place;  for 
this  &  other  like  enormities,  we  pray  this  honorable  Bench  to 
supress. 

"  Signed  in  the  behalf  of  the  rest, 

"ABRAHAM  HOOPER,  foreman." 

No.  VIII. 
"  Philadelphia,  the  4th  of  the  12th  month,  1702. 

"  We,  ye  the  Grand  Jury  for  ye  Citty  of  Philadelphia,  present 
John  Smith,  of  this  citty,  living  in  Strawberry  Alley,  for  being 
maskt  or  disgised  in  womans  apparrell,  walking  openly  through 
the  streets  of  this  city,  &  from  house  to  house,  on  or  about  the 
26th  of  y«  10th  month  last  past,  it  being  against  the  Law  of  God, 
ye  Law  of  this  province,  &  the  Law  of  nature,  to  the  staining  of 
holy  profession  &  incoridging  of  wickedness  in  this  place. 
"  Signed  in  behalf  of  the  rest, 

"ABRA.  HOOPER,  foreman." 

No.  IX. 

"Philadelphia,  the  4th  of  y«  12th  month,  1702. 
"We,  the  Grand  Jury  for  the  City  of  Philadelphia,  present 


578  APPENDIX. 

John  Simes,  ordonary  keeper  of  this  city,  for  keeping  a  Desorderly 
house,  a  nursery  to  Debotch  y6  inhabitants  &  youth  of  this  citty, 
&  suffering  masqueraded  persons  in  the  house  to  dance  &  revel, 
on  or  upon  the  26th  or  28th  of  the  10th  month  last  past,  to  the 
Greef  of  and  Desturbance  of  peaceable  minds,  &  propigating  ye 
throne  of  wickedness  amongst  us. 

"  Signed  in  behalf  of  the  rest, 

"  ABBA.  HOOPER,  foreman." 


No.  X. 

"  Philadelphia,  y«  4th  of  the  12th  mon.,  1T02. 

"  "We,  of  y«  Grand  Jury  for  the  Citty  of  Philadelphia,  Do  psent 
John  Joyse,  for  having  of  to  wifes  at  once,  which  is  boath  against 
the  law  of  God  and  man.* 

"  Signed  in  behalf  of  the  rest, 

"ABRA.  HOOPER,  foreman." 


The  political  party,  since  called  Native  American,  or  Know  No- 
thing, though  charged  with  being  one  of  recent  origin,  seems  to 
have  had  a  very  early  beginning  in  Pennsylvania.  We  find  the  fol- 
lowing indictment : 

No.  XI. 

"  Philadelphia,  y«  6th  of  the  3rd  month,  1703. 

"  We,  of  the  Grand  Jury  for  this  city,  Doe  present  Alexander 
Paxton  &  his  wife,  for  letting  a  house  to  John  Lovet,  he  being 

*  "  And  still  more,"  the  presentment  might  have  naturally  added, 
"  against  that  of  woman." 


APPENDIX.  579 

a  Stranger,  &  have  not  Given  security  for  The  In  Demnifying  of 
this  Corporation. 

"  Signed  in  behalf  of  the  rest, 

"  ABBA.  HOOPER,  foreman." 


TTe  have  next  a  curious  petition,  which  shows  what  a  mixed 
jurisdiction  the  courts  of  that  day  were  called  on  to  exercise.  It 
is  in  the  Mayor's  Court,  which  had  succeeded,  apparently,  to  the 
office  of  Parens  Patrice,  of  the  Lord  Chancellor  of  England.  The 
petition  resembles,  extremely,  some  of  those  found  in  -the  recently 
published  "  Chancery  Calendars." 

No.  XII. 

"  To  the  Honble  the  Mayor,  Recorder,  and  Aldermen,  for  the 
City  of  Philada,  now  sitting  in  Court,  the  6th  day  of  May,  1703. 

"The  petition  of  Priscilla  Vaughan,  widow,  most  humbly shew- 
eth,  That  your  Petitioner's  mother,  Margaret  Cook,  (for  reasons 
best  known  to  herself,)  hath  turn'd  her  out  of  doors  some  weeks 
since,  and  expos' d  her  to  great  hardships  and  difficulties,  being  a 
desolate  widow,  and  hath,  and  still  doth  detain  all  her  Household 
Goods  and  Utinsils,  except  her  wearing  apparrel,  tho'  your  poor 
Petitioner  has  not  only  sent,  but  gone  in  Person,  to  request  and 
intreat  y"  delivery  thereof,  which  she  still  refuses,  without  giving 
any  just  reason  for. 

"  Yor  Petitioner  therefore  humbly  Prays  this  honble  Court  to  con- 
sider the  premises,  and  to  interceed  in  her  behalf  with  her  sd  mo- 
ther, that  so  she  may  not  be  constrained  to  bring  unnatural  action 
ags*  her  aged  and  hon"1  mother. 

"  And  yor  Petition11  as  in  duty  shall  ever  pray,  &c. 

"PRICE  VAUGHAN." 


580  APPENDIX. 


No.  XIII. 

"  Philadelphia,  this  third  day  of  November,  1703. 

"  We  doe  also  present  Jon  Furnis  &  Thomas  McCarty  &  Tho- 
mas Anderson  &  henery  Flower,  barbers,  for  triming  people  on 
first  days  of  the  weeks,  commonly  called  Sunday,  contrary  to  the 
law  io  that  case  made  &  provided. 

"  Signed  in  behalf  of  the  rest  of  the  Jurors, 

"  JOHN  REDMAN,  foreman." 

No.  XIV. 

"  We  doe  also  present  John  Jones,  Alderman,  for  making  In- 
croachment  on  mulbery  Street,  in  this  city,  by  setting  a  great  reed 
or  hay  stack  in  the  said  street,  these  two  years  past,  &  making  a 
close  fence  about  the  same,    this  3  day  of  September,  1703. 
"  Signed  in  behalf  of  the  rest  of  the  Jurors, 

pr  JOHN  REDMAN,  foreman." 

No.  XV. 

"  We  doe  also  present  henery  Brooks,  the  Queen's  collector,  at 
the  horekills,  for.  committing  several  outrages  &  disturbances  in 
this  citty,  on  or  about  the  11  &  12  day  of  October,  1703,  about  the 
dead  time  of  the  night,  to  the  terrifying  &  affrighting  the  queen's 
peaceable  subjects,  &  against  the  laws  in  that  case  made  &  pro- 
vided. 

"  Signed  in  behalf  of  the  rest  of  the  Jurors,  pr  me, 

"JOHN  REDMAN." 


APPENDIX.  581 

We  here  observe,  as  in  No.  V.,  that  when  the  attention  of  the 
Court  was  called  to  the  matter,  some  of  these  very  loose  indict- 
ments are  quashed.  "  henery  Brooks,  the  Queen's  collector  at  the 
horekills,"  who  seems  to  have  been  coming  home  late  from  an  eve- 
ning party,  where  he  had  "  taken  a  little  too  much,"  no  doubt  had 
counsel  to  defend  him,  and  the  record  notes,  that  "  this  Present- 
ment was  quashed  for  Insufficiency." 

Next  comes  an  excellent  indictment,  the  spirit,  if  not  the  form, 
of  which,  all  housekeepers,  as  we  have  said  before,  will  commend 
to  the  District-attorney,  as  an  excellent  model.  The  hotel-keepers 
in  those  days,  as  on  these,  raised  the  price  of  beef  in  the  market. 

No.  XVI.      * 

"  Philadelphia,  y  4 :  12  :  1703-4. 

"  We,  the  Grand  Inquest  for  this  corporation,  do  present  Anne 
Symes,  ye  wife  of  John  Symes,  Inn-keeper,*  for  forestalling  the 
market,  contrary  to  law,  on  the  29th  11  mo.  last  past. 

"  pr  WM.  BEVON,  Foreman." 


APPENDIX  B. 


RECORD  IN  WILLIAM  v.  TILL,  REFERRED  TO  ON  PAGE  237. 
t 

"  June  Term,  1749. 
"  PHILADELPHIA  COUNTY,  ss. 

'  William  Till,  late  of  Philad*  County,  merchant,  was  attach' d 
to  answer  Lawrence  "Williams,  of  a  plea  of  trespass  upon  the 
case,  &c. 

"  And  whereupon,  the  sa  Lawrence,  by  John  Ross,  his  att17,  com- 
plains that,  whereas  the  sd  William,  the  seventh  day  of  May,  in 
the  year  of  our  Lord  one  thousand  seven  hundred  and  forty-six, 
at  Philad*,  in  the  County  afr,  was  indebted  to  the  said  Lawrence, 
in  the  sum  of  three  thousand  seven  hundred  and  ninety-four 
pounds  nineteen  shillings  and  ten  pence,  sterling  money  of  Great 
Britain,  as  well  for  divers  goods,  wares  and  merchandises  by  the 
8d  Lawrence  to  the  sd  William,  at  the  special  instance  and  request 
of  the  sd  William,  before  that  time  sold  and  delivered,  as  for  divers 
sums  of  money  by  the  sd  Lawrence  to  and  for  the  sd  William,  at 
the  like  instance  and  request  of  the  sd  William  before  that  time 
lent,  laid  out,  paid  and  expended,  and  also  for  Work,  Labour,  and 

*  This  is  the  same  person  indicted  in  No.  IX.,  for  a  masquerade  in  his 
house. 


APPENDIX.  533 

Service  by  the  said  Lawrence  for  the  sa  "William,  at  the  like  In- 
stance and  Bequest  of  the  sa  William  before  that  time  done  and 
performed.  And  being  so  thereof  indebted,  the  af*  William  after- 
wards, to  wit,  the  same  day  and  year  af*  at  Philad"  in  the  County 
afa  in  consideration  thereof  upon  himself  did  assume,  and  to  the 
sd  Lawrence  then  and  there  faithfully  did  Promise  that  he  the  s* 
William  the  afa  sum  of  money,  to  the  sd  Lawrence  when  he  should 
Afterwards  be  thereunto  required  would  well  and  truly  Pay  and 
Content.  Nevertheless  the  sd  William  his  Promise  and  Assump- 
tion afd  not  Regarding  but  Contriving  and  fraudulently  Intending 
him  the  sd  Lawrence  in  that  behalf  Craftily  and  Subtlely  to  deceive 
and  defraud  the  afd  sum  of  Three  thousand  Seven  hundred  and 
Ninety-four  pounds  nineteen  shillings  and  ten  pence  sterling  money 
aft  or  any  part  or  penny  thereof  to  the  sa  Lawrence  hath  not  paid 
or  him  for  the  same  in  any  manner  contented  (altho'  to  do  the 
same  the  afd  William  afterwards  to  wit  the  Tenth  day  of  May,  in 
the  year  of  our  Lord  seventeen  hundred  and  forty-six  afd  often 
afterwards  at  Philad"  afd  by  the  sd  Lawrence  was  required,)  but  the 
same  to  him  to  Pay  or  Content  altogether  hitherto  hath  refused 
and  still  doth  refuse,  Whereupon  the  sd  Lawrence  saith  he  is  worse 
and  hath  Damage  to  the  value  of  Five  thousand  Pounds,  and  there- 
upon he  Brings  this  suit,  &c. 
"Ross." 

"JOHN   DOE, 

Pledges,  &c.  & 

"RiCHD.  ROE." 


PLEA, 

"  And  the  aforesaid  William  Till  cometh  and  saith  that  hereto- 
fore and  since  the  Inipetration  of  the  Writ  of  Summons  iii  this 


584  APPENDIX. 

plea,  to  wit,  the  eighth  day  of  November,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  fifty,  at  a  Court  of  Common  Pleas 
held  for  the  County  of  Sussex,  one  of  the  three  lower  Counties  upon 
Delaware  at  Lewes,  in  the  same  County,  to  wit,  at  Philadelphia 
County  aforesaid,  a  certain  Jacob  Phillips  did  impetrate  and  obtain 
from  and  out  of  the  same  Court  a  certain  writ  of  our  Lord  the  King 
that  now  is,  to  the  Sheriff  of  Sussex  County  aforesaid  directed, 
whereby  our  said  Lord  the  King  did  command  the  same  Sheriff, 
that  if  the  said  Jacob  Phillips  made  him  secure  in  prosecuting  his 
Clamour,  that  he  should  attach  all  and  singular,  the  Goods  and 
Chattels,  Lands  and  Tenements,  Rights  and  Credits,  of  and  belong- 
ing to  Lawrence  Williams,  late  of  Sussex  aforesaid,  Merchant,  (if 
they  might  be  found  in  his  Bailiwick,)  so  that  the  said  Lawrence 
should  be  and  appear  before  the  Justices  of  the  same  Court,  there 
to  be  held  on  the  first  Tuesday  of  February  then  next,  to  answer 
the  aforesaid  Jacob  Phillips  of  a  plea  of  Trespass  on  the  Case,  &c. 
By  virtue  of  which  writ,  afterward  and  before  the  Return  thereof, 
to  wit,  the  fourth  day  of  May,  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  fifty-one,  the  Sheriff  of  the  said  county  of  Sus- 
sex, at  Sussex  aforesaid,  to  wit,  at  Philadelphia  County  aforesaid, 
did,  in  due  form  of  Law,  attach,  in  the  hands  of  the  said  William 
Till,  all  the  Goods  and  Chattels,  rights,  debts,  and  Credits,  to  the 
said  Lawrence  Williams  belonging,  due,  or  owing,  and  which  then 
were  in  the  hands  of  the  same  William  Till,  according  to  the  exi- 
gence of  the  same  writ,  of  which  same  writ  the  said  Sheriff  after- 
ward, to  wit,  the  said  first  Tuesday  in  May,  at  Lewes  aforesaid,  to 
wit,  at  Philadelphia  County  aforesaid,  to  the  Justices  of  the  same 
Court  did  make  return  in  these  words :  By  virtue  of  the  within 
writ  to  me  directed,  I  humbly  certify  that  I  have  attached  all  the 
effects  of  Lawrence  Williams,  Merchant,  in  the  hands  of  William 
Till,  Esq.,  as  within  I  was  commanded;  and  I  have  summoned 
him  the  said  William  as  Garnishee  to  the  said  Lawrence,  this  fourth 
day  of  February,  in  the  year  of  our  Lord  one  thousand  seven  hun- 


APPENDIX.  585 

dred  and  fifty ;  which  said  plea  between  the  said  Jacob  Phillips 
and  the  said  William  Till,  in  the  same  Court,  before  the  same 
Justices,  at  Lewes  aforesaid,  to  wit,  at  Philadelphia  County  afore- 
said, as  yet  remaineth  pending  and  undetermined,  as  by  the  Records 
and  proceedings  of  the  same  Court,  here  into  Court  brought,  may 
more  fully  appear.  Wherefore,  he  prayeth  judgment  if  the  said 
Lawrence  Williams  his  action  aforesaid  against  the  said  William 
Till  further  to  maintain  ought  pending  the  said  action  between  the 
said  Jacob  Phillips  and  the  said  William  Till  undetermined. 
"  FRANCIS." 


DEMURRER. 

"  And  the  aforesaid  Lawrence  Williams  saith,  that  he,  notwith- 
standing any  matter  by  the  said  William  Till,  in  his  plea  last  above 
pleaded,  alleged,  ought  not  to  be  precluded  from  having  his  action 
aforesaid  thereupon  against  him  the  said  William  Till,  because 
he  saith  that  the  plea  aft  last  mentioned  by  the  said  William 
Till,  in  manner  and  form  aforesaid  above  pleaded,  and  the  matter 
in  the  same  contained,  are  not  sufficient  in  the  law  to  preclude  the 
said  Lawrence  Williams  from  having  his  action  aforesaid  thereupon 
against  the  said  William  Till ;  to  which  plea  last  aforesaid,  he  the 
said  Lawrence  Williams  hath  no  necessity,  neither  by  the  Law  of 
the  Land  is  bound  in  any  manner  to  answer,  and  this  he  is  ready 
to  verify :  Whereupon,  for  want  of  a  sufficient  answer  in  this  Be- 
half, the  said  Lawrence  Williams  prays  judgment,  and  his  damages 
by  occasion  of  the  premises  aforesaid  to  be  to  him  adjudged,  &c. 

"  Ross,  P.  Quar." 

The  demurrer  seems  to  have  been  overruled,  as  the  next  entry 
shows  the  case  "  At  Issue." 
VOL.  I.— 38 


586  APPENDIX. 


BILLS    OF    EXCEPTION. 

"  And  thereupon of  Council  with  the  plaintiff, 

doth  offer  in  evidence  to  the  jury  aforesaid,  several  writings  on 
paper,  containing  therein  the  following  words,  and  figures. 
[ACCOUNTS  AND  DEPOSITIONS.] 

THOS.  LAWRENCE, 
JOSH.  MADDOX, 
EDWD.  SHIPPEN, 
B.  FRANKLIN. 


"  Whereupon,  Tench  Francis,  of  Council,  with  William  Till, 
the  Defendant  in  this  cause,  to  the  Court  here,  for  the  same  Wil- 
liam Till,  doth  say  and  alledge. 

"First,  That  although  all  the  matters  and  things,  by  the  said  John 
Gent,  in  the  said  writing  named,  Deposed,  Sworn,  and  Declared  to 
be  true,  are  true  in  manner  and  form  as  the  said  John  Gent,  on 
his  Oath,  in  his  Deposition  aforesaid,  hath  Deposed,  Sworn,  and 
Declared.  Nevertheless,  by  the  Law  of  the  Land,  the  Accounts 
aforesaid  to  the  said  Deposition  annexed,  or  any  of  them,  in  the 
said  Writings  contained  ought  not  to  be  read  or  given  in  Evidence 
to  the  Jury  aforesaid. 

"  Secondly,  That  the  same  accounts  ought  not  to  be  read  or 
given  in  Evidence  to  the  Jury  aforesaid,  by  virtue  of,  or  under  the 
Prooff,  Oath,  or  Deposition  afores3  of  the  said  Lawrence  Williams, 
the  Plaintiff,  because,  by  the  Law  of  the  Land,  no  person  can  be 
a  witness  in  his  own  Cause,  nor  ought  the  Testimony  of  the  Plain- 
tiff or  Defendant,  either  vivS,  voce,  on  Oath,  or  by  Deposition,  ex- 
parte,  be  admitted  or  given  in  Evidence  to  any  Inquest  or  Jury  in 
any  Cause,  Suit  or  Action,  to  verify  or  prove  any  matter  or  thing 


APPENDIX.  587 

for  the  benefit  or  advantage  of  the  person  or  persons  respectively 
making  such  Oath  or  Deposing  as  aforesaid. 

"  And  doth  pray  of  the  Justices  of  the  Court  here  that  the  same 
accounts  in  the  said  Writings  mentioned,  or  any  of  them,  may  not 
be  read  or  given  in  Evidence  to  the  said  Jury,  for  the  Causes  and 
Reasons  aforesaid,  and  for  other  good  Reasons  and  Causes ;  and 
that  the  said  Deposition  of  the  said  Lawrence  Williams  may  not  be 
given  in  Evidence,  or  read  to  the  Jury  aforesaid,  for  the  Reasons 
and  Causes  aforesaid,  and  for  other  good  Reasons  and  Causes. 

THOS.  LAWRENCE, 
JOSH.  MADDOX, 
EDWD.  SHIPPEN, 
B.  FRANKLIN. 


"Nevertheless  the  Justices  afores3  do  Declare  their  Opinion 
and  adjudge  that  upon  the  several  matters  and  things  Deposed, 
Sworn,  and  on  Oath  Declared  by  the  said  John  Gent,  in  manner 
and  form  aforesaid,  the  said  Accounts  ought,  by  the  Law  of  the 
Land,  to  be  read  and  given  in  Evidence  to  the  said  Jury. 

"  And  that  the  Deposition  aforesaid  of  the  said  Lawrence  Wil- 
liams, although  made  and  taken  ex  parte  in  form  aforesaid,  is  good 
and  legal  Evidence  to  the  Jury  aforesaid,  and  by  the  Law  of  the 
Land  ought  to  be  read  and  given  in  Evidence  to  the  same  Jury. 

"And  that  the  said  Accounts,  verified  and  proved  by  the  Depo- 
sition aforesaid  of  the  said  Lawrence  Williams,  in  manner  and  form 
aforesd,  ought  to  be  read  and  given  in  Evidence  to  the  said  Jury. 

THOS.  LAWRENCE, 
JOSH.  MADDOX, 
EDWD.  SHIPPEN, 
B.  FRANKLIN." 

"  And  thereupon  the  said  Tench  Francis,  for  the  said  William 


588  APPENDIX. 

Till,  prayeth  the  said  Justices,  because  the  said  matters  and  things 
cannot  appear  on  the  Record  of  this  action  and  Tryal,  to  Sign  and 
Seal  this  Bill,  containing  the  matters  and  things  aforesd,  according 
to  the  form  of  the  Statute  in  such  case  made  and  provided. 

"  To  which  the  same  Justicesjiave  accordingly  set  their  hands 
and  Seals,  this  twelfth  day  of  March,  in  the  twenty-sixth  year  of 
the  Reign  of  our  Sovereign,  Lord  George  the  Second,  King  of 
Great  Britain,  France,  and  Ireland,  Defender  of  the  Faith,  accord- 
ing to  the  Form  of  the  Statute  aforesd. 
To  be  drawn  at  large  in  Form. 

THOS.  LAWRENCE, 
JOSH.  MADDOX, 
EDWD.  SHIPPEN, 
B.  FRANKLIN." 


PHILADELPHIA 

JUDGE&AND.LAAVYKRS 


& 


CHIEF  JUSTICES  OF  THE  SITRKME  COURT  OF  PK,VNA 


April  II  ' 


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